Bank of N.Y. v. Morga

CourtUnited States State Supreme Court (New York)
Citation56 Misc.3d 256,54 N.Y.S.3d 527
Parties The BANK OF NEW YORK, f/k/a The Bank of New York as Trustee for the Certificate–holders of CWMBS, Inc., Alternative Loan Trust 2003–8CB, Mortgage Pass–Through Certificates, Series 2003–19, Plaintiff, v. Elayne MORGA a/k/a Elayne M. Morga, Mortgage Electronic Registration Systems, Inc., as nominee for GMAC Mortgage Corporation d/b/a Ditech.com, Chase Bank USA, NA and "John Doe", said name 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.
Decision Date09 March 2017

Shapiro, DiCaro & Barak, LLC, Rochester, for plaintiff.

Guerrero Law Offices, P.C., Bay Shore, for Elayne Morga, also known as Elayne M. Morga, defendant.

THOMAS F. WHELAN, J.

It is,

ORDERED that this motion (# 001) by the plaintiff for, among other things, summary judgment, caption amendment and the appointment of a referee to compute, is granted in its entirety, and it is further

ORDERED that the proposed Order submitted by the plaintiff, as modified, is signed simultaneously herewith.

This foreclosure action was commenced by filing on November 22, 2013. The matter was reassigned to this Part pursuant to Administrative Order No. 27–17, dated February 28, 2017 and submitted for decision on March 3, 2017. In essence, on February 10, 2003, Elayne Morga, borrowed $132,000.00 from the plaintiff's predecessor-in-interest and executed a promissory note and mortgage. Since January 1, 2010, this defendant has failed to pay the monthly installments due and owing. Only the defendant, Elayne Morga, has answered in this action. In her answer, defendant alleged nine affirmative defenses.

In the moving papers, plaintiff addresses its burden of proof on this summary judgment motion and refutes the affirmative defenses of the answer. With regard to compliance with RPAPL § 1304, plaintiff has established its prima facie burden with the submission of the affidavit of Jacob Rudd, sworn to on June 8, 2016, the Document Executive Specialist employed by Nationstar Mortgage LLC (Nationstar), the servicer of the loan for the plaintiff. He explained Nationstar's practice and procedures as follows:

I have personal knowledge of the facts contained in this Affidavit by virtue of my position at Nationstar, my familiarity with Nationstar's processes and based upon my review and analysis of the relevant business records and other documents of Nationstar referenced and attached herein. While many of Nationstar's processes are automated, the information manually entered by Nationstar employees relating to loans on those systems is based upon personal knowledge of the information and entered into the system at or near the time the knowledge was acquired. These computerized records are created and maintained in the regular course of its business as a loan servicer and Nationstar relies on the records in the ordinary course to conduct its business as a loan servicer.

The affidavit was based upon his personal knowledge of the business records maintained in the regular course of Nationstar's business as a loan servicer and, as he swore to, Nationstar's reliance on the loan servicing records in the ordinary course to conduct its business as a loan servicer. He explained that the pre-action 90–day notice was mailed to defendant by regular and certified mail on December 12, 2012. He also attached to his affidavit, not only copies of the 90–day notice, but the required Proof of Filing Statement to the New York State Banking Department, pursuant to RPAPL § 1306, which is offered as proof to the state agency that the mailing occurred on December 12, 2012, pursuant to the Step One Filing requirement. Therefore, plaintiff has satisfied its prima facie burden on this summary judgment motion (see HSCB Bank USA, Natl. Assn. v. Espinal, 137 A.D.3d 1079, 28 N.Y.S.3d 107 [2d Dept.2016] ).

It was thus incumbent upon the answering defendant to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of the affirmative defenses asserted in her answer or otherwise available to her (see Flagstar Bank v. Bellafiore, 94 A.D.3d 1044, 943 N.Y.S.2d 551 [2d Dept.2012] ; Grogg Assocs. v. South Rd. Assocs., 74 A.D.3d 1021, 907 N.Y.S.2d 22 [2d Dept.2010] ; Wells Fargo Bank v. Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681 [2d Dept.2010] ; Washington Mut. Bank v. O'Connor, 63 A.D.3d 832, 880 N.Y.S.2d 696 [2d Dept.2009] ; J.P. Morgan Chase Bank, NA v. Agnello, 62 A.D.3d 662, 878 N.Y.S.2d 397 [2d Dept.2009] ; Aames Funding Corp. v. Houston, 44 A.D.3d 692, 843 N.Y.S.2d 660 [2d Dept.2007] ).

Notably, affirmative defenses predicated upon legal conclusions that are not substantiated with allegations of fact are subject to dismissal (see CPLR 3013, 3018[b] ; Katz v. Miller, 120 A.D.3d 768, 991 N.Y.S.2d 346 [2d Dept.2014] ; Becher v. Feller, 64 A.D.3d 672, 677, 884 N.Y.S.2d 83 [2d Dept.2009] ; Cohen Fashion Opt., Inc. v. V & M Opt., Inc., 51 A.D.3d 619, 858 N.Y.S.2d 260 [2d Dept.2008] ). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667, 330 N.E.2d 624 [1975] ; see also Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept.2012] ; Argent Mtge. Co., LLC v. Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2d Dept.2010] ). In addition, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus without any efficacy (see New York Commercial Bank v. J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 969 N.Y.S.2d 796 [2d Dept.2013] ; Starkman v. City of Long Beach, 106 A.D.3d 1076, 965 N.Y.S.2d 609 [2d Dept.2013] ).

In opposition, defendant raises only three claims, an unplead challenge to the capacity of the plaintiff to utilize the courts of the State of New York, standing to commence the action (First and Third Affirmative Defenses), and lack of compliance with the provisions of RPAPL § 1304 against the 90–day notice (Fourth Affirmative Defense). Therefore, the Court dismisses the Second, Fifth, Sixth, Seventh, Eighth and Ninth Affirmative Defenses, as abandoned.

The Court rejects the challenge to the claimed lack of capacity to sue, since it is not set forth as an affirmative defense in the answer and as such, is waived pursuant to CPLR 3211(e). It is clear in the Second Department that capacity to sue and standing are distinct legal concepts (see Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 837 N.Y.S.2d 247 [2d Dept.2007] ). In any event, plaintiff's ability to enforce the note and mortgage is protected by Banking Law § 200 and § 200–a (see First Wis. Trust Co. v. Hakimian, 237 A.D.2d 249, 654 N.Y.S.2d 808 [2d Dept.1997] ).

The Court rejects the First and Third Affirmative Defenses (standing). One of the various methods that standing may be established is by due proof that the plaintiff or its custodial agent was in possession of the note prior to the commencement of the action. The production of such proof is sufficient to establish, prima facie, the plaintiff's possession of the requisite standing to prosecute its claims for foreclosure and sale (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363, supra; U.S. Bank v. Ehrenfeld, 144 A.D.3d 893, 41 N.Y.S.3d 269 [2d Dept.2016] ; JPMorgan Chase Bank, Natl. Ass'n v. Weinberger, 142 A.D.3d 643, 37 N.Y.S.3d 286 [2d Dept.2016] ; Citimortgage, Inc. v. Klein, 140 A.D.3d 913, 33 N.Y.S.3d 432 [2d Dept.2016] ; U.S. Bank Natl. Ass'n v. Godwin, 137 A.D.3d 1260, 28 N.Y.S.3d 450 [2d Dept.2016] ; Wells Fargo Bank, N.A. v. Joseph, 137 A.D.3d 896, 26 N.Y.S.3d 583 [2d Dept.2016] ; Emigrant Bank v. Larizza, 129 A.D.3d 904, 13 N.Y.S.3d 129, supra; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 969 N.Y.S.2d 82 [2d Dept.2013] ).

Additionally, the plaintiff's attachment of a duly indorsed mortgage note to its complaint or to the certificate of merit required by CPLR 3012–b, coupled with an affidavit in which it alleges that it had possession of the note prior to commencement of the action, has been held to constitute due proof of the plaintiff's possession of the note prior to the commencement of the action and thus its standing to prosecute its claim for foreclosure and sale (see JPMorgan Chase Bank, N.A. v. Venture, 148 A.D.3d 1269, 48 N.Y.S.3d 824 [3d Dept.2017] ; Deutsche Bank Trust Co. v. Garrison, 147 A.D.3d 725, 46 N.Y.S.3d 185 [2d Dept.2017] ; Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d 861, 45 N.Y.S.3d 189 [2d Dept.2017] ; Deutsche Bank Natl. Trust Co. v. Umeh, 145 A.D.3d 497, 41 N.Y.S.3d 882 [1st Dept.2016] ; Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 39 N.Y.S.3d 491, 494 [2d Dept.2016] ; Deutsche Bank Natl. Trust Co. v. Webster, 142 A.D.3d 636, 37 N.Y.S.3d 283 [2d Dept.2016] ; JPMorgan Chase Bank, Natl. Ass'n v. Weinberger, 142 A.D.3d 643, 37 N.Y.S.3d 286, supra; Federal Natl. Mtge. Ass'n v. Yakaputz II, Inc., 141 A.D.3d 506, 507, 35 N.Y.S.3d 236, 237 [2d Dept.2016]JPMorgan Chase Bank, Natl. Ass'n v. Kobee, 140 A.D.3d 1622, 32 N.Y.S.3d 767 [2d Dept.2016] ; JPMorgan Chase Bank, N.A. v. Roseman, 137 A.D.3d 1222, 29 N.Y.S.3d 380 [2d Dept.2016] ; Deutsche Bank Natl. Trust Co. v. Leigh, 137 A.D.3d 841, 28 N.Y.S.3d 86 [2d Dept.2016] ; Nationstar Mtge., LLC v. Catizone, 127 A.D.3d 1151, 9 N.Y.S.3d 315 [2d Dept.2015] ).

Here, plaintiff also demonstrated possession of the note prior to the commencement of the action (see Hudson City Sav. Bank v. Genuth, 148 A.D.3d 687, 48 N.Y.S.3d 706 [2d Dept.2017] ; HSBC Bank USA v. Espinal, 137 A.D.3d 1079, 28 N.Y.S.3d 107, supra; LNV...

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