HSBC Mortg. Corp. v. Carr

• Decision Date: 28 November 2012
• Citation: 2012 N.Y. Slip Op. 08097,100 A.D.3d 963,955 N.Y.S.2d 155
• Court: New York Supreme Court — Appellate Division
• Parties: HSBC MORTGAGE CORPORATION (USA), respondent, v. Leon CARR, etc., et al., defendants, Dale Hansen, appellant.

100 A.D.3d 963

955 N.Y.S.2d 155

2012 N.Y. Slip Op. 08097

HSBC MORTGAGE CORPORATION (USA), respondent,

v. Leon CARR, etc., et al., defendants,Dale Hansen, appellant.

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

Nov. 28, 2012.

Rossi & Crowley, LLP, Douglaston, N.Y. (Thomas J. Rossi, Sally Sancimino, and Nadav Zamir of counsel), for appellant.

Stern & Eisenberg, P.C., Lancaster, N.Y. (Len M. Garza and Kenneth Britt of counsel), for respondent.

ANITA R. FLORIO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In an action to foreclose a mortgage, the defendant Dale Hansen appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated September 15, 2011, which denied his motion for summaryjudgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Dale Hansen for summary judgmentdismissing the complaint insofar as asserted against him is granted.

In 2003, the defendants Leon Carr and Claudette Carr (hereinafter together the Carrs) obtained a home equity line of credit account (hereinafter the HELOC) in the amount of $50,000 from the plaintiff, HSBC Mortgage Corporation (USA) (hereinafter HSBC). The HELOC was secured by a mortgage on the subject property (hereinafter the HSBC HELOC mortgage), which was then owned by the Carrs. In 2004, the Carrs refinanced the subject property, obtaining a loan from IndyMac Federal Savings Bank (hereinafter IndyMac) in the amount of $285,000 which was secured by a mortgage on the subject property (hereinafter the IndyMac mortgage). In connection with the IndyMac mortgage, the Carrs requested a “payoff letter” from HSBC relating to the HSBC HELOC mortgage. A check that satisfied the balance due on the HELOC, as of that time, was sent to HSBC. Accompanying that check was an HSBC form (hereinafter the HSBC form) indicating that the Carrs requested that a discharge of the HSBC HELOC mortgage be forwarded to IndyMac's counsel and closing agent, attorney Robert Mandel. It is undisputed that HSBC received and negotiated the check, but did not close the HELOC. It is also undisputed that HSBC received the completed HSBC form.

In 2005 and 2006, the Carrs withdrew $47,788.06 in new funds from the still-open HELOC. In December 2007, IndyMac commenced an action to foreclose the IndyMac mortgage; HSBC was not named as a party in that action. In January 2008, HSBC commenced the instant action to foreclose the HSBC HELOC mortgage, naming, among others, “Mortgage Electronic Registration Systems, Inc. as Nominee for Indymac Bank, F.S.B.” as a defendant.

In November 2008, IndyMac obtained title to the subject property after being the successful bidder at the foreclosure auction held in connection with IndyMac's foreclosure action. Ultimately, in April 2010, title to the subject property was transferred to the defendant Dale Hansen. In January 2011, Hansen, as the record owner of the subject property, was granted leave to intervene as a defendant in the instant action. In his answer, he asserted counterclaims, inter alia, for the cancellation and discharge of the HSBC HELOC mortgage.

Hansen moved for summary judgment dismissing the complaint insofar as asserted against him, arguing that HSBC was obligated to close the HELOC in 2004 when, in the course of the IndyMac refinancing, the outstanding balance on the HELOC was paid in full and the HSBC form requesting that a satisfaction of the HSBC HELOC mortgage be sent to Mandel for filing was submitted to HSBC. In support of his motion, Hansen submitted, among other things, an affirmation from Mandel stating that he tendered both the “payoff check” and the HSBC form to HSBC. Hansen also submitted, inter alia, a copy of the check payable to HSBC in an amount sufficient to pay off the HELOC balance and the HSBC form, along with the cover letter from Mandel, transmitting the check and the HSBC form. The cover letter stated that enclosed was a “payoff check[ ] ... for the ... referenced loan in the amount [of] $47,355.93” and advised that “any questions” should be directed to him.

HSBC opposed Hansen's motion, arguing that Hansen failed to establish his entitlement to judgment as a matter of law. HSBC contended that tendering the HSBC form advising that a discharge of the HSBC HELOC mortgage was to...