Bank of Am., Nat'l Ass'n v. Brannon, 380976/07.

• Decision Date: 31 October 2017
• Docket Number: 380976/07.
• Citation: 63 N.Y.S.3d 352
• Parties: BANK OF AMERICA, NATIONAL ASSOCIATION, Plaintiff–Appellant, v. Sarah BRANNON, Defendant–Respondent. [And Other Actions].
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1
63 N.Y.S.3d 352

BANK OF AMERICA, NATIONAL ASSOCIATION, Plaintiff–Appellant,
v.
Sarah BRANNON, Defendant–Respondent.

[And Other Actions].

380976/07.

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

Oct. 31, 2017.

63 N.Y.S.3d 354

Fein, Such & Crane, LLP, Syracuse (John A. Cirando, D.J. Cirando, Bradley E. Keem and Elizabeth deV. Moeller of counsel), for appellant.

Sarah Brannon, respondent pro se.

ROLANDO T. ACOSTA, P.J., ROSALYN H. RICHTER, RICHARD T. ANDRIAS, MARCY L. KAHN, ELLEN GESMER, JJ.

ANDRIAS, J.

On January 18, 2007, defendant Sarah Brannon obtained a $360,000 loan from GE Money Bank (GE), secured by a mortgage on her home in the Bronx. GE indorsed the mortgage note in blank, making it a bearer instrument.

On September 17, 2007, plaintiff's agent, Litton Loan Servicing, LP, sent defendant a "Notice of Default and Intent to Accelerate" stating that defendant was in default for failing to pay amounts due and that the total amount needed to bring the loan current was $5,482.40 as of that date. On November 14, 2007, plaintiff commenced this foreclosure action alleging that defendant defaulted by failing to make the payment due on August 1, 2007. The mortgage was assigned to plaintiff by assignment dated November 29, 2007. In her answer, defendant, pro se, admitted that as of the date of the complaint she owed plaintiff $359,809.63 with interest from July 1, 2007 and did not raise any affirmative defenses.

In March 2008, plaintiff moved for summary judgment, supported, inter alia, by

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an affidavit of Denise Bailey, Assistant Secretary of Litton, and an Affidavit of Merit and Amount due of Diane Dixon, Assistant Vice President of Litton. In opposition, defendant asserted that she had been in contact with Litton regarding a loan modification and was awaiting a complete review. She did not dispute her default.

By order dated April 24, 2008, plaintiff was granted summary judgment and a referee was appointed to compute the amount due. On November 2, 2009, plaintiff assigned the mortgage to IFS Properties, LLC. On February 16, 2011, a settlement conference was held and the matter was released to the Foreclosure Part.

In April 2014, plaintiff, by new counsel, moved to vacate the April 24, 2008 order because the Bailey and Dixon affidavits may not have been correctly notarized under New York law, and counsel could not comply with the requirements of Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge of the Courts. Plaintiff also moved for summary judgment anew, based upon an affidavit, sworn to April 18, 2014, of Matthew Mattera, a managing member of IFS, and an affirmation of counsel certifying the accuracy of Mattera's affidavit. In opposition, defendant asserted that Mattera could not affirm the relevant facts because he was an employee of IFS, not plaintiff, and his affidavit did not describe the records upon which he relied. Defendant also asserted that she had no notice of the assignment to IFS.

By order dated September 15, 2014, the court granted plaintiff's motion to vacate the April 29, 2008 order. However, the court denied summary judgment on the ground that the defects in the affidavits in support of the original summary judgment motion were not mistakes, omissions or mere irregularities that could be cured by a new affidavit.

In November 2014, plaintiff again moved for summary judgment based on an affidavit of Mattera dated November 3, 2014. In opposition, defendant questioned the validity of the assignment of the loan by plaintiff to IFS and complained that IFS had not given her the opportunity to get a loan modification. Defendant no longer alleged that Mattera failed to establish that he could affirm the facts necessary to establish her default. By order dated December 22, 2014, the court denied plaintiff's motion for the reasons stated in its September 15, 2014 order.

In February 2015, plaintiff moved for summary judgment for a third time. In support, plaintiff submitted the indorsed in blank note, the mortgage, and the default notice. Plaintiff also submitted an affidavit of Mattera dated January 31, 2015 and an affirmation of counsel asserting that plaintiff had demonstrated a prima facie case for foreclosure and that defendant had failed to plead any affirmative defenses.

In opposition, defendant alleged that she was not properly notified that the note had been transferred to IFS and that she was improperly served with the motion. Defendant did not challenge the sufficiency of Mattera's affidavit or refute his allegations concerning her default. Plaintiff's counsel replied that the mortgage did not require notice of a sale or transfer be given to defendant; that defendant had waived the defense of standing when she failed to raise it in her answer; that, in any case, plaintiff had standing because it was the holder of the indorsed-in-blank note when the action was commenced; and that defendant was properly served.

By order dated March 10, 2015, the court denied the motion, stating that it did not believe that plaintiff understood that

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an action initiated on the basis of a false affidavit suffers from a fatal defect, which cannot be overcome with a subsequent affidavit. The court also stated that even if the error could be corrected in a new affidavit, the January 31, 2015 affidavit of Mattera was defective because it failed to indicate the state or county where the notarization took place.

We now reverse to grant plaintiff's third motion for summary judgment. The failings in the supporting affidavits to the original motion for summary judgment only affected the ability of the court to grant that motion, not the viability of the action as a whole. The substitution, nunc pro tunc, of newly-signed affidavits of merit in a mortgage foreclosure action, provided in an effort to bring a plaintiff in compliance with Administrative Order 431/11, is permitted (see U.S. Bank N.A. v. Eaddy, 109 A.D.3d 908, 971 N.Y.S.2d 336 [2d Dept.2013] ).

Furthermore, under the circumstances before us, the flaws in the notarization of Mattera's affidavit are not fatal to plaintiff's summary judgment motion (see Matter of Cubisino v. Cohen, 47 N.Y.S.2d 952, 953–954 [Sup.Ct., N.Y. County 1944], affd. 267 App.Div. 891, 48 N.Y.S.2d 798 [1st Dept.1944] ; Fisher v. Bloomberg, 74 App.Div. 368, 369, 77 N.Y.S. 541 [1st Dept.1902] ; see also Sirico v. F.G.G. Prods., Inc., 71 A.D.3d 429, 434, 896 N.Y.S.2d 61 [1st Dept.2010] ; Todd v. Green, 122 A.D.3d 831, 832, 997 N.Y.S.2d 155 [2d Dept.2014] ). Pursuant to CPLR 2101(f) the court can disregard a defect in the Uniform Certificate of Acknowledgment unless a defendant has demonstrated that a substantial right of hers has been prejudiced. As no prejudice has been shown by defendant, the alleged defect should have been disregarded (see Bank of N.Y. Mellon v. Vytalingam, 144 A.D.3d 1070, 42 N.Y.S.3d 274 [2d Dept.2016] ; see also Executive Law § 142–a [2 ][f] [official certificate of notary public shall not be deemed invalid due to "the fact that the action was taken outside the jurisdiction where the notary public or commissioner of deeds was authorized to act"] ).

Plaintiff established standing by virtue of its possession of the indorsed-in-blank note at the commencement of this action (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ). It demonstrated its prima facie entitlement to judgment as a matter of law by providing evidence of the note and mortgage, and proof of defendant's default (see Horizons Invs. Corp. v. Brecevich, 104 A.D.3d 475, 961 N.Y.S.2d 112 [1st Dept.2013] ). This included Mattera's affidavit of facts and defendant's answer in which she admitted that as of the date of the complaint she owed plaintiff $359,809.63 with interest from July 1, 2007, and denied knowledge or information sufficient to form a belief as to plaintiff's allegations that she "has/have failed to comply with the conditions of the mortgage and note by failing to pay principal and interest and/or taxes, assessments, water rates, insurance premiums, escrow and/or other charges that came due and payable on the 1st day of August 2007...."

In opposition, defendant failed to provide evidence sufficient to raise an issue of fact as to an available defense. "Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted" ( Kuehne & Nagel v. Baiden, 36 N.Y.2d 539, 544, 369 N.Y.S.2d 667, 330 N.E.2d 624 [1975] ). Defendant did not deny receiving the notice of default or that she had defaulted in her obligations under the note and mortgage. Defendant also waived any standing defense, or defense based on

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plaintiff's alleged failure to comply with a condition precedent, since she did not raise those defenses in her answer, and did not bring a motion to dismiss the complaint on those grounds (see Security Pac. Natl. Bank v. Evans, 31 A.D.3d 278, 280–281, 820 N.Y.S.2d 2 [1st Dept.2006], appeal dismissed 8 N.Y.3d 837, 830 N.Y.S.2d 8, 862 N.E.2d 86 [2007] ; 1199 Hous. Corp. v. International Fid. Ins. Co., 14 A.D.3d 383, 384, 788 N.Y.S.2d 88...