HSBC Bank U.S. v. Hoffman
| Decision Date | 30 September 2019 |
| Docket Number | Index 59277/2018 |
| Citation | 2019 NY Slip Op 34221 (U) |
| Parties | HSBC BANK USA, National Association as Trustee for Merrill Lunch Mortgage Investors Trust, Series MLLC 2006-3 Plaintiff, v. PETER M. HOFFMAN NKIA PETER HOFFMAN; WENDY J. HOFFMAN NKIA WENDY HOFFMAN; MERRILL LYNCH CREDIT CORPORATION; FIA CARD SERVICES NA; THE UNITED STATES OF AMERICA; NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE; DISCOVER BANK; PORTFOLIO RECOVERY ASSOCIATES LLC; BROOK CLUB HOMEOWNER'S ASSOCIATION; AMERICAN EXPRESS CENTURION BANK; CHASE BANK USA, N.A.; AMERICAN EXPRESS BANK FSB AMERICAN EXPRESS TOWER; THE PART LANE RESERVE HOMEOWNER'S ASSOCIATION, INC.; JOHN DOE (SAID NAME BEING FICTITIOUS TO REPRESENT UNKNOWN TENANTS/OCCUPANTS OF THE SUBJECT PROPERTY AND ANY OTHER PARTY OR ENTITY OF ANY KIND, IF ANY, HAVING OR CLAIMING AN INTEREST OR LIEN UPON THE MORTGAGED PROPERTY), Defendants. Motion Sequence No. 3&4 |
| Court | New York Supreme Court |
Unpublished Opinion
To Commence the statutory time for appeals as of right (CPLR 5513[a)), you are advised to serve a copy of this order, with notice of entry, upon all parties.
PRESENT: HON. SAM D. WALKER, J.S.C.
DECISION & ORDER
The following papers were considered on Plaintiffs motion for summary judgment and other relief requested:
Notice of Motion/Affirmations/Affidavit/Exhibit A-B & A-O 1-23
Memorandum of Law in Opposition & in Support of cross-Motion 51
On or about July 14, 2006, Defendants executed and delivered a Note to Plaintiffs predecessor-in-interest in the sum of $1, 243 400.00. As security for the repayment of the Note, Defendants executed and delivered a mortgage in the amount of $1, 243 400.00 secured by the real property located at 65 Stonewall Circle, Harrison a/k/a West Harrison, NY 10604. On or about May 22, 2015, the original Note and Mortgage were transferred and delivered to Plaintiff and an assignment was recorded. Plaintiff alleges that Defendants defaulted on the terms of the Note and Mortgage by failing to make the mortgage payment that was due October 1, 2017 and each subsequent payment. On January 18, 2018, Plaintiff alleges that it mailed 90-day notices to Defendants by certified and first class mail, which notices were subsequently registered with the New York State Department of Financial Services. Plaintiff alleges that on November 20, 2017, its agent, Walz Group, LLC mailed a notice of default to Defendants in accordance with the terms of the Note and Mortgage and despite receiving notice of their default, Defendants failed to cure the default.
Plaintiff commenced this action on June 13, 2018, through the filing of the Summons, Complaint and Certificate of Merit in the Westchester County Clerk's Office. On the same date, Plaintiff filed a Notice of Pend ency. According to the filed Affidavits of Service, each party was timely served with the Summons and Complaint. Despite being sered with the Summons and Complaint, each Defendant defaulted in appearing in this action, except Defendants who filed a contesting answer and defendant United States of America who appeared through counsel. Settlement conferences were held on August 16, 2018, September 25, 2018, November 1, 2018, December 7, 2018 and on January 18, 2019 at which time the matter was released to proceed.
Plaintiff now moves for an Order: granting summary judgment and striking the Answer filed by Defendants Peter M. Hoffman and Wendy J. Hoffman, pursuant to CPLR 3212; default judgment against the remaining non-appeasing Defendants; appointing and directing a referee to compute the amount due to Plaintiff for principal, interest, late charges, costs of collection, taxes, insurance premiums, and any other payments and/or assessments advanced by Plaintiff during the pendency of this action in order to protect its security, and to examine and report how the mortgaged premises should be sold, pursuant to RPAPL 31321; and substituting the tenant Peter Hoffman, Jr. as a party Defendant in the place and stead of "JOHN DOE."
Defendants oppose Plaintiff's motion and cross-move for an order pursuant to CPLR 3212 granting summary judgment in favor of Defendants Peter M. Hoffman and Wendy J. Hoffman and against Plaintiff HSBC Bank USA, National Association and dismissing the action against Defendants Peter M. Hoffman and Wendy J. Hoffman.
order to obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court directing judgment in its favor as a matter of law tendering sufficient evidence to demonstrate the absence of any material issues of fact, (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980); CPLR 3212[b]). "To establish a prima face case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and mortgage note, ownership of the mortgage, and the defendant''s default in payment," (Campaign v. Barba, 23 A.D.3d 327 [2d Dept. 2005)). Where the proponent of the motion makes a prima face showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, (Vermette v. Kenworth Truck Co., 68 N.Y.2d 714, 717 [1986)).
"In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced"" (Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279; U.S. Bank N.A. v. Cange, 96 A.D.3d 825, 8262; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753-754; Countrywide Home Loans, Inc. v. Gress, 68 A.D.3d 709). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident," (U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754; HSBC Bank USA v. Hernandez, 92 A.D.3d 843).
Here, Plaintiff has established through the Affidavit of Stephanie Bieleck, Assistant Vice President of PHH Mortgage services, the servicer for the loan at issue in this proceeding, that Plaintiff possessed the Note prior to the commencement of the action on June 13, 2018. The record reflects that the original Mortgage with Merrill Lunch Credit Corporation was recorded on December 12, 2006. An assignment of mortgage dated May 22, 2055 transferring the Mortgage from Bank of America, National Association, successor by merger to Merrill Lynch Credit Corporation to Plaintiff was duly recorded on May 27, 2055 in the Office of the Westchester County Clerk.
Plaintiffs standing, however, is also based upon physical delivery. To support physical delivery of the note and mortgage to Plaintiff prior to the commencement of the action, Plaintiff produced the copy of the Note and Mortgage as attachments to its Complaint that was served upon Defendants as evidence that it possessed the same at the time the action was commenced. By attaching the Note, Plaintiff has proven that delivery of the Note occurred prior to the commencement of the action. Since Plaintiff established its standing by physical delivery, the Court need not address the validity of any prior or subsequently executed document assigning the Mortgage and Note, . Furthermore, as a general matter, once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note, (Bank of New York v. Silverberg, 86 A.D.3d 274 [2d Dept 2011]). Plaintiff has, therefore, established standing for the purpose of commencing this foreclosure action against Defendants.
Stephanie Bielecki also stated in her Affidavit that she had personal knowledge of Plaintiffs records and record making practices, and how such records are made, used and kept. Based upon these records, Defendants, Peter M. Hoffman and Wendy J. Hoffman defaulted under the terms of the Note and no payment has been made to the holders despite demand, by having failed to make payment due on October 1, 2017, and each month thereafter. Plaintiff has therefore, elected to accelerate the entire indebtedness which is presently due and owing in the amount of $1, 227, 055.30 as of August 1, 2018. Interest continues to accrue from August 1, 2018, together with late charges and any advances made or to be made to protect the lien of the mortgage.
Plaintiff must also establish that it satisfied all of the conditions precedent to commencing an action in foreclosure. Paragraph 22 of the Mortgage provides that in the case of default, the lender must send to the borrower a notice of default giving the borrower at least 30 days from the date of the notice to correct the default. This notice must be sent pursuant to paragraph 15 of the Mortgage by first class mail to the property address or any other address the borrower designates by notice to the lender. Providing this notice is a condition precedent to commencing a foreclosure action.
William Long, Assistant Vice President of PHH Mortgage Corporation the servicer for the loan at issue in this proceeding avers that he has personal knowledge of the records and record making practices, and how such records are made, used and kept and based upon the business records he reviewed, including the electronic screen prints, confirms that the servicer generated and caused to be mailed the 30-day contractual demand letter to Peter M. Hoffman and Wendy J Hoffman on November 20, 2017, in...
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