Bank of Am., N.A. v. Rodomista

• Decision Date: 03 June 2015
• Docket Number: No. 37828–11.,37828–11.
• Citation: 18 N.Y.S.3d 577 (Table)
• Parties: BANK OF AMERICA, N.A., Successor by Merger to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP, Plaintiff, v. Glenn RODOMISTA, New York State Department of Taxation and Finance, Sari Rodomista, Home Consultants, Inc., “John Doe 1 to John Doe 25”, said names being fictitious, the persons or parties intended being the persons, parties, corporations or entities, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.
• Court: New York Supreme Court

18 N.Y.S.3d 577 (Table)

BANK OF AMERICA, N.A., Successor by Merger to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP, Plaintiff
v.
Glenn RODOMISTA, New York State Department of Taxation and Finance, Sari Rodomista, Home Consultants, Inc., “John Doe 1 to John Doe 25”, said names being fictitious, the persons or parties intended being the persons, parties, corporations or entities, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.

No. 37828–11.

Supreme Court, Suffolk County, New York.

June 3, 2015.

Druckman Law Group PLLC, Westbury, for Plaintiff.

Fred M. Schwartz, Esq., Smithtown, for Defendants, Glenn Rodomista Home Consultants, Inc.

Opinion

JAMES C. HUDSON, J.

Upon the following papers numbered 1 to 26 read on this motion for summary judgment and this cross motion for dismissal of the complaint; Notice of Motion/Order to Show Cause and supporting papers 1–10; Notice of Cross Motion and supporting papers 11–16; Answering Affidavits and supporting papers 17–22; Replying Affidavits and supporting papers 23–25; Other Stipulation; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED, that this motion (001) by the Plaintiff for, inter alia, an order awarding summary judgment in its favor and against the Defendants Glenn Rodomista and Home Consultants, Inc., fixing the defaults of the non-answering Defendants, appointing a referee and amending the caption is determined as set forth below; and it is

ORDERED that this cross motion (002) by the Defendants Glenn Rodomista and Home Consultants, Inc. for, among other things, an order denying the Plaintiff's motion for summary judgment, dismissing the complaint insofar as asserted against him pursuant to CPLR 3211(a)(3) and (a)(7) ; or, in the alternative, pursuant to CPLR 3126 compelling the Plaintiff to respond to his previously served discovery demands; and/or precluding the Plaintiff from offering evidence at trial in support of the complaint; and scheduling another foreclosure settlement conference is denied in its entirety; and it is

ORDERED that the Plaintiff is directed to file proof of filing of an additional or a successive notice of pendency with the proposed judgment of foreclosure (see, CPLR 6513 ; 6516[a]; Aames Funding Corp. v. Houston, 57 AD3d 808, 872 N.Y.S.2d 134 [2d Dept 2008] ; EMC Mtge. Corp. v. Stewart, 2 AD3d 772, 769 N.Y.S.2d 408 [2d Dept 2003] ; Horowitz v. Griggs, 2 AD3d 404, 767 N.Y.S.2d 860 [2d Dept 2003] ); and it is

ORDERED that the Plaintiff is directed to supply a properly executed uniform form certificate of acknowledgment and a certificate of conformity for the affidavit of the Plaintiff's representative submitted in support of the motion, at the time of the hearing or trial of this action (see, CPLR 2001 ; U.S. Bank N.A. v. Dellarmo, 94 AD3d 746, 942 N.Y.S.2d 122 [2d Dept 2012] ); and it is

ORDERED that counsel are directed to appear at a compliance conference scheduled for Wednesday, July 29, 2015, at 9:30 a.m., at New York State Supreme Court located at One Court, Riverhead, Part XL; and it is

ORDERED that the Plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of this Court; and it is further

ORDERED that the Plaintiff is directed to serve a copy of this order with notice of entry upon all parties who have appeared herein and not waived further notice pursuant to CPLR 2103(b)(1), (2) or (3) within thirty (30) days of the date herein, and to promptly file the affidavits of service with the Clerk of the Court.

This is an action to foreclose a mortgage on real property known as 26 Richard Avenue, Islip Terrace, N.Y. 11752 (“the property”). On August 29, 2006, the Defendant Glenn Rodomista (“Rodomista”) executed a note in favor of Countrywide Bank, N.A. (“the lender”) in the principal sum of $294,000.00. To secure said note, Rodomista gave the lender a mortgage also dated August 29, 2006 on the property. The mortgage indicates that Mortgage Electronic Registration Systems, Inc. (“MERS”) was acting solely as a nominee for the lender and its successors and assigns and that, for the purposes of recording the mortgage, MERS was the mortgagee of record. By way of an undated endorsement, the note was allegedly initially transferred to Countrywide Home Loans, Inc. (“CHL”). By way of a second undated endorsement the note was allegedly transferred to the Plaintiff, Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP formerly known as Countrywide Home Loans Servicing, LP. By an assignment of the mortgage dated November 14, 2011, MERS as nominee for the lender purportedly transferred the mortgage to the Plaintiff. Thereafter, the assignment was duly recorded in the Suffolk County Clerk's Office on December 12, 2011.

Rodomista allegedly defaulted on the note and mortgage by failing to make the monthly payment of principal and interest due on January 1, 2011, and each month thereafter. After Rodomista allegedly failed to cure said default, the Plaintiff commenced the instant action by the filing of a lis pendens, summons and verified complaint on December 9, 2011.

In response to the complaint, Rodomista and the Defendant Home Consultants, Inc. (collectively “the Rodomista Defendants”) interposed a verified answer sworn to on January 13, 2012. By their answer, the Rodomista Defendants generally deny all of the allegations set forth in the complaint, and assert thirteen affirmative defenses, including, inter alia, the Plaintiff's lack of standing; a void assignment; the failure to state a cause of action; the failure to properly serve notice of the alleged default prior to commencement; a defective default notice; and the failure to comply with the provisions of RPAPL § 1304. The remaining Defendants have neither answered, nor appeared herein, and thus are in default.

The Plaintiff now moves for, inter alia, an order: (1) awarding summary judgment in its favor and against the Rodomista Defendants, striking their answer and dismissing the affirmative defenses set forth therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering Defendants; (3) pursuant to RPAPL § 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) amending the caption.

In support of the motion, the Plaintiff submits, among other things, the note, mortgage and assignments of mortgage; a 1–4 Family Rider (Assignment of Rents); the pleadings; a Clerk's Judgment entered against Rodomista on December 3, 2010; an affirmation from counsel; an affidavit from Mark McCloskey, an Assistant Vice President of Specialized Loan Servicing LLC, as attorney in fact for Washington Mutual Mortgage Pass–Through Certificates WMALT Series 2007–OA1 Trust, U.S. Bank National Association, as Trustee, successor in interest to Bank of America, National Association, as Trustee, successor by merger to LaSalle Bank National Association, as Trustee; affidavits of service; a 30–day default notice; a copy of the 90–day notice pursuant to RPAPL 1304 printed in English; a 90–day notice pursuant to RPAPL 1304 printed in Spanish; a “Proof of Filing Statement” from the New York State Banking Department pursuant to RPAPL § 1306 ; and a foreclosure affirmation pursuant to AO 431/11 executed on October 3, 2012.

Turning to the loan documents, the face of the note specifies the property address and contains two undated endorsements without recourse. The first endorsement was allegedly made by an officer of the lender payable to the order of CHL. The second endorsement in blank was allegedly made by an officer of CHL. The mortgage, at section “B” specifies that Rodomista's address at the time of execution of the loan documents was 230 Terryville Road, Port Jefferson Station, N.Y. 11776 (the Port Jefferson residence). Section “F” of the mortgage, provides that the property was improved by a one or two family residence or dwelling only. On an unnumbered page attached to the mortgage, entitled “LEGAL DESCRIPTION EXHIBIT A”, Rodomista's contact information includes, inter alia, the address of the subject mortgaged property. Section “18” of the mortgage provides, in part, and in sum and substance that the lender may require immediate payment in full of all sums secured by the security instrument if “all or any part of the [p]roperty, or if any right in the [p]roperty, is sold or transferred without the lender's prior written permission.”

The 1–4 Family Rider (Assignment of Rents), which is dated August 29, 2006 and executed by Rodomista, provides, inter alia, that the requirement at section “6” in the mortgage concerning Rodomista's occupancy was deleted (Rider ¶ “F”), and that Rodomista “shall not seek, agree to or make a change in the use of the [p]roperty or its zoning classification, unless the [l]ender has agreed in writing to the change” (Rider ¶ “B”). Parenthetically, the rider also provides that, upon the [l]ender's request after default, “[Rodomista] shall assign to [l]ender all leases of the [p]roperty and all security deposits made in connection with leases of the property” (Rider ¶ “G”).

The summons filed in this action includes, among other things, the requisite warning required by RPAPL § 1320, which appears to be in the specified type-size, and is, in all other respects, in compliance...