Bank of Am. v. Candy Maeder, PNC Bank, Nat'l Ass'n, 060078/2013.

• Decision Date: 27 April 2015
• Docket Number: No. 060078/2013.,060078/2013.
• Citation: 16 N.Y.S.3d 791 (Table)
• Parties: BANK OF AMERICA, NA, Plaintiff, v. Candy MAEDER, PNC Bank, National Association, Town Supervisor of the Town of Babylon and “John Doe # 1” through “John Doe # 10”, the last ten names being fictitious and unknown to the plaintiff, the person or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.
• Court: New York Supreme Court

16 N.Y.S.3d 791 (Table)

BANK OF AMERICA, NA, Plaintiff
v.
Candy MAEDER, PNC Bank, National Association, Town Supervisor of the Town of Babylon and “John Doe # 1” through “John Doe # 10”, the last ten names being fictitious and unknown to the plaintiff, the person or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.

No. 060078/2013.

Supreme Court, Suffolk County, New York.

April 27, 2015.

Frenkel Lambert, Bay Shore, NY, Attys. for Plaintiff.

Martin & Moodie Law Group, Lindenhurst, NY, Attys. for Def. Maeder.

Opinion

THOMAS F. WHELAN, J.

Upon the following papers numbered 1 to 12 read on this motion by plaintiff for accelerated judgments and an order appointing a referee to compute and cross motion by defendant Maeder to dismiss and/or other relief ; Notice of Motion/Order to Show Cause and supporting papers 1–4; Notice of Cross Motion and supporting papers 5–8; Opposition papers 9–11; Reply papers; Other 12 (non-military affidavit ); (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that this motion (# 001) by the plaintiff for accelerated judgments on its complaint, the deletion of certain party defendants and an order of reference is considered under CPLR 3212, 3215 and RPAPL § 1321 and is granted; and it is further

ORDERED that the cross motion (# 002) by defendant, Candy Maeder, for an order denying plaintiff's motion and dismissing the plaintiff's complaint or in the alternative, pursuant to CPLR 3408, referring the matter to the foreclosure conference part for further settlement negotiations, among other things, is denied.

The plaintiff commenced this action on March 21, 2013 to foreclose the lien of a mortgage dated June 1, 2007 given by defendant Maeder to secure a mortgage of the same date in the principal amount of $350,200.00 to a predecessor-in-interest of the plaintiff. In its complaint, the plaintiff claims to be the holder of the note and asserts, among other things, that a default in payment occurred on December 1, 2008 and that such default has not been cured.

In response to the plaintiff's service of its summons and complaint upon defendant Maeder in April of 2013, said defendant appeared by counsel on April 24, 2013 and on May 8, 2013 filed an answer. Therein, defendant Maeder asserts some eleven affirmative defenses, one or more of which challenge the standing of the plaintiff to prosecute its claims for foreclosure and sale. In January of 2015, the defendant changed attorneys and appeared herein by her current counsel. The consent to change attorneys was not, however, filed in the court's E–Filing System until February 8, 2015, and there is no indication that it was served prior to that date upon the plaintiff's counsel.

Following the initialization of this action in August of 2013, by the filing of a request for judicial intervention by the plaintiff, the action was assigned to the specialized mortgage foreclosure conference part of this court. A conference of the type mandated by CPLR 3408 was first scheduled for February 28, 2014. For the next eight months, the plaintiff and defendant Maeder attempted to resolve the issues by pursuit of a loan modification without success. Following the last conference held in the specialized part on Ocober 15, 2014, the action was marked “not settled” and assigned to the IAS inventory of this court.

By motion returnable January 21, 2015, the plaintiff moved for an order awarding it the following relief: (1) summary judgment against the answering defendant and default judgments against the corporate defendants who did not appear by answer; (2) the deletion of the unknown defendants and a caption amendment to reflect same; and (3) the appointment of a referee to compute amounts due under the subject mortgage. After acquiring the plaintiff's consent to adjourn, defendant Maeder responded by serving a cross motion (# 002) seeking dismissal of the complaint or a return of this action to the conference part or an order scheduling pre-trial disclosure.

For the reasons stated below, the plaintiff's motion (# 001) is granted while the cross motion (# 002) by defendant Maeder is denied.

Entitlement to a judgment of foreclosure is established, as a matter of law, where the plaintiff produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact (see Midfirst Bank v. Agho, 121 AD3d 343, 991 N.Y.S.2d 623 [2d Dept 2014] ; Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 986 N.Y.S.2d 843 [2d Dept 2014] ; Emigrant Mtge. Co., Inc. v. Beckerman, 105 AD3d 895, 964 N.Y.S.2d 548 [2d Dept 2013] ; Solomon v. Burden, 104 AD3d 839, 961 N.Y.S.2d 535 [2d Dept 2013] ; US Bank Natl. Ass'n. v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012] ; Baron Assoc., LLC v. Garcia Group Enter., 96 AD3d 793, 946 N.Y.S.2d 611 [2d Dept 2012] ; Citibank, N.A. v. Van Brunt Prop., LLC, 95 AD3d 1158, 945 N.Y.S.2d 330 [2d Dept 2012] ; HSBC Bank v. Shwartz, 88 AD3d 961, 931 N.Y.S.2d 528 [2d Dept 2011] ). This standard is, however, enlarged to include a demonstration that the plaintiff is possessed of the requisite standing to pursue its claims where, and only where, the defense of standing is due and timely asserted by a defendant possessed of such defense (see Deutsche Bank Natl. Trust Co. v. Islar, 122 AD3d 566, 996 N.Y.S.2d 130 [2d Dept 2014] ; Midfirst Bank v. Agho, 121 AD3d 343, supra; Plaza Equities, LLC v. Lamberti, 118 AD3d 688, supra; Kondaur Capital Corp. v. McCary, 115 AD3d 649, 981 N.Y.S.2d 547 [2d Dept 2014] ; Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931, 969 N.Y.S.2d 82 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Rivas, 95 AD3d 1061, 945 N.Y.S.2d 328 [2d Dept 2012] ; Citimortgage, Inc. v. Stossel, 89 AD3d 887, 888, 934 N.Y.S.2d 182 [2d Dept 2011] ; U.S. Bank, N.A. v. Adrian Collymore, 68 AD3d 752, 890 N.Y.S.2d 578 [2d Dept 2009] ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 837 N.Y.S.2d 247 [2d Dept 2007] ).

Recent appellate cases emanating from the Appellate Division, Second Department concerning the issue of the standing of a foreclosure plaintiff have held as follows: “Generally, [i]n residential mortgage foreclosure actions, as here, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage and the unpaid note, and evidence of the default” ' (internal citations omitted). However, “[w]here the plaintiff is not the original lender and standing is at issue, the plaintiff must establish that it is the owner or holder of both the note and mortgage seeking summary judgment must also provide evidence that it received both the mortgage and note by a proper assignment which can be established by the production of a written assignment of the note or by physical delivery to the plaintiff of the mortgage and note” (US Bank Natl. Ass'n v. Madero, 125 AD3d 757, 2015 WL 542170 [2d Dept 2015] ; see Citimortgage, Inc. v. Chow Ming Tung, 126 AD3d 841, 2015 WL 1213591 [2d Dept 2015] ; U.S. Bank Natl. Ass'n v. Guy, 125 AD3d 845, 2015 WL 668979 [2d Dept 2015] ; Wells Fargo Bank, N.A. v. Ali, 122 AD3d 726, 995 N.Y.S.2d 735 [2d Dept 2014] ; Midfirst Bank v. Agho, 121 AD3d 343, 991 N.Y.S.2d 623 [2d Dept 2014], supra; Bank of N.Y. Mellon v. Gales, 116 AD3d 723, 982 N.Y.S.2d 911 [2d Dept 2014] ; Kondaur Capital Corp. v. McCary, 115 AD3d 649, 650, 981 N.Y.S.2d 547 [2d Dept 2013] ). Delivery of the note to a custodial agent of the plaintiff will suffice to establish the standing of a foreclosing plaintiff under the foregoing rule (see Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931, 969 N.Y.S.2d 82 [2d Dept 2013], supra; HSBC Bank USA, Natl. Ass'n v. Sage, 112 AD3d 1126, 977 N.Y.S.2d 446 [3d Dept 2013] ; Chase Home Fin., LLC v. Miciotta, 101 AD3d 1307, 1307, 956 N.Y.S.2d 271 [3d Dept 2012] ; Wells Fargo Bank, N.A. v. Wine, 90 AD3d 1216, 1217, 935 N.Y.S.2d 664 [3d Dept 2011] ).

Appellate case authorities have further instructed that delivery of a note may be established in the following ways: 1) physical delivery of the note to the plaintiff prior to commencement of the action (see Kondaur Capital Corp. v. McCary, 115 AD3d 649, 981 N.Y.S.2d 547 [2d Dept 2013], supra; Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931, 932, 969 N.Y.S.2d 82 [2d Dept 2013], supra; Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 AD3d 674, 838 N.Y.S.2d 622 [2d Dept 2007] ); 2) delivery of an endorsed note to the endorsee or bearer on a specific date that is prior to the commencement of the action, from which it may be reasonably inferred that physical delivery of the note was made to the plaintiff by the endorser (see Aurora Loan Serv., LLC v. Taylor, 114 AD3d 627, 980 N.Y.S.2d 475 [2d Dept 2014] ; Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 AD3d 674, supra ); or 3) pre-commencement possession of the note by a custodial agent of a trustee plaintiff named in a pooling and servicing agreement (see HSBC Bank USA, Natl. Ass'n v. Sage, 112 AD3d 1126, 977 N.Y.S.2d 446 [3d Dept 2013], supra ).

Here, the moving papers of the plaintiff established a prima facie entitlement to summary judgment dismissing the affirmative defenses asserted in the answer of defendant Maeder and for summary judgment on its complaint against her as they included copies of the mortgage, the unpaid note and due evidence...