Gustavia Home, LLC v. Hoyer

• Decision Date: 24 January 2019
• Docket Number: 16-CV-4015 (PKC) (VMS)
• Parties: GUSTAVIA HOME, LLC, Plaintiff, v. Yvette HOYER; Shauna M. Paul; United States of America/Internal Revenue Service; New York State Department of Taxation and Finance; City of New York Department of Transportation Parking Violations Bureau; City of New York Environmental Control Board and John Doe "1" Through "12", Said Persons or Parties Having or Claimed to Have a Right, Title or Interest in the Mortgaged Premises Herein, Their Respective Names or Presently Unknown to Plaintiff, Defendants.
• Court: U.S. District Court — Eastern District of New York

362 F.Supp.3d 71

GUSTAVIA HOME, LLC, Plaintiff,

v.Yvette HOYER; Shauna M. Paul; United States of America/Internal Revenue Service; New York State Department of Taxation and Finance; City of New York Department of Transportation Parking Violations Bureau; City of New York Environmental Control Board and John Doe "1" Through "12", Said Persons or Parties Having or Claimed to Have a Right, Title or Interest in the Mortgaged Premises Herein, Their Respective Names or Presently Unknown to Plaintiff, Defendants.

16-CV-4015 (PKC) (VMS)

United States District Court, E.D. New York.

Signed January 24, 2019

Alan Smikun, Alan H. Weinreb, Randy J. Schaefer, The Margolin & Weinreb Law Group, LLP, Syosset, NY, for Plaintiff.

Alexander Krul, Steven Amshen, Petroff Amshen LLP, Beth Patricia Schwartz, Peter A. Laserna, United States Attorneys Office, Brooklyn, NY, for Defendants.

MEMORANDUM & ORDER

Pamela K. Chen, United States District Judge

On July 19, 2016, Gustavia Home, LLC ("Plaintiff") commenced this diversity mortgage foreclosure action under Article 13 of the New York Real Property Actions and Proceedings Law ("RPAPL") § 1301, seeking to foreclose on a mortgage encumbering the property located at 361 Vernon Avenue, Brooklyn, New York 11206 (the "Property"). (Compl., Dkt. 1, ¶ 1.) On June 14, 2017, Defendants Yvette Hoyer and Shauna M. Paul, by counsel, filed an answer to the complaint in which they substantially denied Plaintiff's allegations, asserted numerous affirmative defenses, and advanced one counterclaim. (Answer, Dkt. 31.) Plaintiff now seeks an order: (1) granting summary judgment in Plaintiff's favor pursuant to Fed. R. Civ. P. 56(a) ; (2) striking the answer, affirmative defenses, and counterclaim interposed by Defendants; and (3) such other and further relief this Court deems proper. (Pl.'s Mot. for Summ. J., Dkt. 59, at 1–2.) Defendants, for their part, submitted a cross-motion requesting that the Court grant summary judgment in their favor and dismiss the complaint.

(Defs.' Cross-Mot. for Summ. J., Dkt. 57, at 1.) The Court concludes that Plaintiff has met its burden of proof and that Defendants have failed to advance evidence to rebut the prima facie case established by Plaintiff. For the reasons explained below, Plaintiff's motion for summary judgment is granted, Defendants' cross-motion for summary judgment is denied, Plaintiff's motion to strike Defendants' answer and affirmative defenses is denied as moot, and Defendants' counterclaim is dismissed.

BACKGROUND

I. Relevant Facts

The following facts, taken from the parties' Rule 56.1 statements¹ and relevant portions of the record, are undisputed unless otherwise noted. Plaintiff—a single-member limited liability company organized under Florida law—has one member, an individual domiciled in Florida. (Pl. 56.1,² Dkt. 61, ¶¶ 1–2.) On June 15, 2005, Defendant Hoyer executed to First Franklin, A Division of National City Bank of Indiana ("First Franklin") a mortgage that encumbers the Property.³ (Pl. 56.1 ¶ 3.) Defendant Hoyer executed a note to First Franklin on that same day. (Pl. 56.1 ¶ 4.) The mortgage and note were eventually assigned to Plaintiff. (Compl. Ex. D at 6; Affidavit of Jared Dotoli ("Dotoli Aff."), Dkt. 64, ¶ 5.) On March 30, 2016, a "Default Notice" was sent to Defendant Hoyer, explaining that she was in default, that she had thirty days after receipt of the notice to dispute the validity of the debt, and that a payment⁴ was due within ninety days from the date on which the letter was sent, after which the loan would be accelerated should Defendant Hoyer fail to pay. (Pl. 56.1 ¶ 5.) Additionally, Plaintiff's mortgage servicer sent Defendant Hoyer a "Pre-Foreclosure Notice" stating that, as of March 30, 2016, Defendant Hoyer was in default and the default could be cured by making a specified payment,⁵ which would be due within ninety days. (Pl. 56.1 ¶ 6.) Defendant Hoyer failed to make any payment by the deadline. (Id. ¶ 7.)

II. Procedural History

Plaintiff commenced this action on July 19, 2016 to foreclose the mortgage encumbering the Property. (Id. ¶ 8.) Defendants submitted an answer in which they substantially denied Plaintiff's allegations (Answer ¶¶ 1–44), asserted numerous affirmative defenses (id. ¶¶ 45–96), and advanced one counterclaim (id. ¶¶ 97–100). The parties entered the discovery process (Dkt. 29). On October 17, 2017, Plaintiff moved for entry of an order appointing a receiver to take control of the Property (Dkt. 39), which was granted (Dkt. 71). The parties filed competing motions for summary judgment. (See Dkts. 57 & 59.)

DISCUSSION

I. Standard of Review

Summary judgment is appropriate where the submissions of the parties, taken together, "show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505.

The initial burden of "establishing the absence of any genuine issue of material fact" rests with the moving party. Zalaski v. City of Bridgeport Police Dep't , 613 F.3d 336, 340 (2d Cir. 2010). Once this burden is met, however, the burden shifts to the non-moving party to put forward some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli v. City of N.Y. , 579 F.3d 160, 166–67 (2d Cir. 2009) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A mere "scintilla of evidence" in support of the non-moving party is insufficient; "there must be evidence on which the jury could reasonably find for the" non-movant. Hayut v. State Univ. of N.Y. , 352 F.3d 733, 743 (2d Cir. 2003) (quotation omitted). In other words, "[t]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese , 298 F.3d 156, 160 (2d Cir. 2002) (quotation omitted).

In determining whether a genuine issue of fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc. , 542 F.3d 290, 309 (2d Cir. 2008). The Court also construes any disputed facts in the light most favorable to the non-moving party. See Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157–59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505. "The same standard of review applies when the court is faced with [a] cross-motion[ ] for summary judgment." Lauria v. Heffernan , 607 F.Supp.2d 403, 407 (E.D.N.Y. 2009) (quotation omitted). When evaluating cross-motions for summary judgment, the Court reviews each party's motion on its own merits and draws all reasonable inferences against the party whose motion is under consideration. Morales v. Quintel Entm't, Inc. , 249 F.3d 115, 121 (2d Cir. 2001).

II. Analysis

A. Plaintiff's Prima Facie Case

"Under New York state law, three elements must be established in order to sustain a foreclosure claim: (1) the proof of the existence of an obligation secured by a mortgage; (2) a default on that obligation by the debtor; and (3) notice to the debtor of that default." United States v. Paugh , 332 F.Supp.2d 679, 680 (S.D.N.Y. 2004) ; see also Builders Bank v. Charm Devs. II, LLC , Nos. 09-CV-3935 & 09-CV-4410, 2010 WL 3463142, at *2 (E.D.N.Y. Aug. 30, 2010) ("[S]ummary judgment in a mortgage foreclosure action is appropriate where the Note and Mortgage are produced to the Court along with proof that the Mortgagor has failed to make payments due under the Note." (quotation omitted) ).

The Court concludes that Plaintiff has proven the existence of an obligation secured by a mortgage. Although the parties do not appear to question the existence of such an obligation ( (Pl. 56.1 ¶ 3); (Defs.' 56.1, Dkt. 56-9, ¶ 3) ), Defendants "dispute that Plaintiff was the owner and holder of the note and mortgage when the complaint was filed on the grounds that the cited material either does not support Plaintiff's claim or is inadmissible" (Defs.' 56.1 ¶ 9). But Plaintiff submitted to the Court, as Exhibit D affixed to its complaint, a document titled "Corporate Assignment of Mortgage" that plainly verifies that Plaintiff was assigned the mortgage on the Property on December 30, 2015. (Compl. Ex. D. at 6.) Because Defendants adduce no basis for questioning the veracity of this document or the other applicable evidence presented by Plaintiff (see Affidavit of Note Possession ("Note Aff."), Dkt. 60-5, ¶¶ 7–11), the Court concludes that Plaintiff was, in fact, the owner and holder of the note and mortgage when the complaint was filed in this case. See BellSouth Telecomms., Inc. v. W.R. Grace & Co.-Conn. , 77 F.3d 603, 615 (2d Cir. 1996) ("It is not sufficient [for a party opposing summary judgment] merely to assert a conclusion without supplying supporting arguments or facts." (quotation omitted) ); Topalian v. Hartford Life Ins. Co. , 945 F.Supp.2d 294, 299 n.2 (E.D.N.Y. 2013) (disregarding factual assertions on summary judgment "[t]o the extent that the parties have failed to cite to admissible evidence in support of [them] in their respective 56.1 Statements and Responses").

Furthermore, the Court concludes that Plaintiff has established a default on the mortgage obligation by the debtor, the second element of its prima facie case. In evaluating whether this element has been satisfied, "[n]o...