JP Morgan Chase Bank, Nat'l Ass'n v. Condello

• Citation: 71 N.Y.S.3d 823,59 Misc.3d 427
• Decision Date: 27 February 2018
• Docket Number: 21800/13
• Parties: JP MORGAN CHASE BANK, National Association, Plaintiff, v. Michael E. CONDELLO a/k/a Michael Condello, Ellen M. Condello a/k/a Ellen Condello, and "John Doe" and "Jane Doe", #1 through #7, the last being fictitious and unknown to the plaintiff, the persons or parties intended being the tenants, occupants, persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.
• Court: United States State Supreme Court (New York)

59 Misc.3d 427

71 N.Y.S.3d 823

JP MORGAN CHASE BANK, National Association, Plaintiff,

v.Michael E. CONDELLO a/k/a Michael Condello, Ellen M. Condello a/k/a Ellen Condello, and "John Doe" and "Jane Doe", #1 through #7, the last being fictitious and unknown to the plaintiff, the persons or parties intended being the tenants, occupants, persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.

21800/13

Supreme Court, Suffolk County, New York.

Decided on February 27, 2018

MORGAN, LEWIS & BOCKIUS, Attys. For Plaintiff, 101 Park Ave. New York, NY 10178

LAW OFFICES OF CHARLES WALLSHEIN, LLC, Atty. For Defendants Condello, 35 Pinelawn Rd.—Ste. 106E, Melville, NY 11747

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

ORDERED that the cross motion (# 002) by the defendants, Michael and Ellen Condello, for dismissal, is denied in its entirety; and it is further

ORDERED that the proposed Order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further

ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5–b(h)(3).

This foreclosure action was commenced by filing on August 14, 2013. In essence, on March 16, 2006, defendant, Michael Condello, borrowed $432,000.00 from plaintiff's predecessor-in-interest and executed a promissory note and, together with Ellen Condello, a mortgage. The terms of the loan were thereafter modified effective December 1, 2012 to provide for a new unpaid principal balance of $338,808.82 and a decreased interest rate. Two months later, on February 1, 2013, Michael Condello defaulted by failing to pay the monthly installments due and owing. Michael and Ellen Condello appeared through counsel by filing an answer on September 5, 2013. An amended answer alleging seventeen affirmative defenses and five counterclaims was later filed on August 26, 2014.

The plaintiff addressed its burden of proof in the moving papers on this summary judgment motion and refuted the affirmative defenses of the answer. Therefore, plaintiff has satisfied its prima facie burden on this summary judgment motion (see HSBC Bank USA, Natl. Assn. v. Espinal , 137 A.D.3d 1079, 28 N.Y.S.3d 107 [2d Dept. 2016] ; U.S. Bank Natl. Assn. v. Cox , 148 A.D.3d 962, 49 N.Y.S.3d 527 [2d Dept. 2017] ). The burden then shifts to defendants (see Bank of America, N.A. v. DeNardo , 151 A.D.3d 1008, 58 N.Y.S.3d 469 [2d Dept. 2017] ) and it is incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting plaintiff's prima facie showing or in support of the affirmative defenses and counterclaims asserted in the answer or otherwise available to defendants (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] ). Additionally, 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] ).

Here, the defendants' opposition and cross motion (# 002) rest solely on allegations regarding plaintiff's compliance with RPAPL § 1304. It is noted that defendants raise this contention for the first time in opposition, as it was not raised as a defense in the amended answer. The Court also notes that although both defendants filed an answer, only Michael Condello has submitted an affidavit in support of the opposition and cross motion. The Court addresses the allegations raised herein. However, in accordance with the above, all affirmative defenses and claims raised in the amended answer and not addressed in the opposition and cross motion are dismissed as abandoned.¹

The defendants pose two challenges to the plaintiff's compliance with RPAPL § 1304. First, they allege that plaintiff violated the "strict compliance" requirements of RPAPL § 1304 by including an additional informational page in the same envelope as the notice. The defendants' second contention challenges plaintiff's compliance with the mailing requirements of RPAPL § 1304. For the reasons that follow, the defendants' allegations are rejected and the cross motion denied.

By way of background, the "strict compliance" component of RPAPL § 1304 originated with the appellate court's decision in Aurora Loan Services, LLC v. Weisblum , where it was held that the plaintiff must demonstrate strict compliance with the statute or face dismissal ( Aurora Loan Services, LLC v. Weisblum , 85 A.D.3d 95, 103, 923 N.Y.S.2d 609 [2d Dept. 2011]. The Court noted that the legislative intent behind the Home Equity Theft Prevention Act ( Real Property Law § 265—a, or "HETPA"), through which RPAPL § 1304 was enacted, was to provide greater protections to borrowers facing foreclosure (see First Natl. Bank of Chicago v. Silver , 73 A.D.3d 162, 165, 899 N.Y.S.2d 256 [2d Dept. 2010], citing Senate Introducer Mem. in Support, Bill Jacket, L. 2006, ch. 308, at 7—9). RPAPL § 1304 was thereafter enacted "to aid the homeowner in an attempt to avoid litigation, and to facilitate communication between distressed homeowners and lenders and/or servicers" ( HSBC Bank USA, Nat. Assn. v. Ozcan, 154 A.D.3d 822, 825, 64 N.Y.S.3d 38 [2d Dept. 2017], citing Senate Introducer Mem. in Support, Bill Jacket L. 2008, ch. 472, § 2, Aurora Loan Services, LLC v. Weisblum , 85 A.D.3d 95, 923 N.Y.S.2d 609, supra ). Specifically, "[t]he bill sponsor sought ‘to bridge that communication gap in order to facilitate a resolution that avoids foreclosure’ by providing a pre-foreclosure notice advising the borrower of ‘housing counseling services available in the borrower's area’ and an ‘additional period of time ... to work on a resolution’ ( Aurora Loan Services, LLC v. Weisblum , 85 A.D.3d at 107–08, 923 N.Y.S.2d 609, supra, citing Senate Introducer Mem. in Support, Bill Jacket, L. 2008, ch. 472, at 10).

To achieve this end, the statute requires that the lender/service mail a notice containing "specific, mandatory language" to the borrower at least 90 days prior to commencement of an anticipated foreclosure filing ( RPAPL § 1304[1] ). The content requirements of the notice support the "underlying purpose of HETPA to afford greater protections to homeowners confronted with foreclosure" ( Aurora Loan Services, LLC v. Weisblum , 85 A.D.3d 95, 103, 923 N.Y.S.2d 609, supra ,citing First Natl. Bank of Chicago v. Silver , 73 A.D.3d 162, 165, 899 N.Y.S.2d 256 [2d Dept. 2010] ). Further, the statute provides that the mailing should take place "in a separate envelope from any other mailing or notice" ( RPAPL § 1304[2] ).

Here, an additional notice containing three sections was included in the envelope with the 90–day notice. The first section of the additional page was directed to service-members and their dependents, and provided information regarding benefits and protections that this class of borrowers are entitled to under the federal Service-members Civil Relief Act (SCRA). The second section was directed to all customers and advised them to be wary of organizations that may charge a fee in connection with housing counseling services or loan modifications, and provided telephone numbers to which the borrower can report what they believe to be suspicious activity. This section also provided the servicer's phone number and urged the borrower to contact that number to discuss available loss mitigation options. The last section included information regarding the purpose of the 90–day notice if the borrowers were protected under a bankruptcy stay.

The defendants contend that the inclusion of this notice renders the "mailing defective on its face," and "frustrate[s] the legislative intent of the statute" as it discourages borrowers from contacting the housing counselors on the list provided in the mailing. They allege that the additional notice was an attempt to "discredit and dissuade" the borrowers from contacting the housing counseling agencies, and surmise that the inclusion demonstrates that plaintiff did not strictly comply with RPAPL § 1304. The Court disagrees. At the outset, the Court notes that the defendants do not claim to have attempted to utilize any of the information provided anywhere in the...