JPMorgan Chase Bank, Nat'l Ass'n v. Aspilaire

• Decision Date: 12 November 2020
• Docket Number: Index No. 15189/13,2018-08187,2018-10676,2018–03949
• Citation: 136 N.Y.S.3d 343,188 A.D.3d 850
• Parties: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, appellant, v. Marie ASPILAIRE, etc., et al., defendants, Flagstar Bank FSB, respondent.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 850

136 N.Y.S.3d 343

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, appellant,

v.Marie ASPILAIRE, etc., et al., defendants,Flagstar Bank FSB, respondent.

2018–03949

2018-08187

2018-10676

Index No. 15189/13

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

Argued—June 26, 2020

November 12, 2020

Bonchonsky & Zaino, LLP, Garden City, N.Y. (Peter R. Bonchonsky and Ellen W. Groarke of counsel), for appellant.

FisherBroyles, LLP, New York, N.Y. (Christina H. Bost Seaton and Richard B. Cohen of counsel), for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage and to vacate and expunge a forged satisfaction of that mortgage, the plaintiff appeals from (1) a decision of the Supreme Court, Kings County (Noach Dear, J.), dated December 13, 2017, (2) an order of the same court dated February 26, 2018, and (3) an order of the same court dated March 1, 2018. The order dated February 26, 2018, insofar as appealed from, upon the decision dated December 13, 2017, denied that branch of the plaintiff's motion which was for summary judgment on its cause of action for foreclosure and granted that branch of the cross motion of the defendant Flagstar Bank FSB which was for summary judgment dismissing the complaint insofar as asserted against it. The order dated March 1, 2018, rejected the plaintiff's proposed counter-order for settlement.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp. , 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the order dated February 26, 2018, is reversed insofar as appealed from, on the law, that branch of the plaintiff's motion which was for summary judgment on its cause of action for foreclosure is granted, and that branch of the cross motion of the defendant Flagstar Bank FSB which was for summary judgment dismissing the complaint insofar as asserted against it is denied; and it is further,

ORDERED that the appeal from the order dated March 1, 2018, is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a][2] ; Islip Theaters, LLC v. Landmark Plaza Props. Corp. , 183 A.D.3d 875, 125 N.Y.S.3d 161 ; Faello v. Faello , 45 A.D.3d 728, 844 N.Y.S.2d 893 ), and leave to appeal has not been granted (see Cascardo v. Stacchini , 100 A.D.3d 675, 677, 954 N.Y.S.2d 177 ); and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In 2007, the defendant Marie Aspilaire executed a mortgage with Washington Mutual Bank (hereinafter WaMu), predecessor in interest of the plaintiff, JPMorgan Chase Bank, National Association (hereinafter Chase), which encumbered a property in Brooklyn (hereinafter the WaMu–Chase mortgage). Chase allegedly acquired the mortgage on September 25, 2008. A purported satisfaction of the WaMu–Chase mortgage thereafter was recorded in the Office of the City Register of the City of New York on October 9, 2008.

Aspilaire conveyed the subject property to the defendant Devon Brown by deed dated December 2, 2008. At the time of the conveyance, a title commitment indicated that there were no outstanding mortgages or other encumbrances of record with respect to the subject property.

Also on December 2, 2008, Brown executed a note and mortgage (hereinafter the Flagstar mortgage) in favor of the defendant Flagstar Bank FSB (hereinafter Flagstar). Notwithstanding this conveyance, Chase's records indicate that Aspilaire continued to make payments on the WaMu–Chase mortgage until 2010.

Brown defaulted on the note associated with the Flagstar mortgage in March 2009. On January 13, 2010, Flagstar commenced an action in the Supreme Court, Kings County, to foreclose the Flagstar mortgage. On June 21, 2013, Flagstar obtained a judgment of foreclosure and sale in that action. Flagstar then purchased the subject property at a foreclosure auction, and the subject property was conveyed to Flagstar by a referee's deed.

On August 19, 2013, Chase commenced this action against Flagstar, among others, to foreclose the WaMu–Chase mortgage and to vacate the satisfaction of mortgage filed with respect to the WaMu–Chase mortgage on the ground that the satisfaction of mortgage had been forged and thus was void ab initio. Chase thereafter moved for summary judgment on the complaint. Flagstar cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. Flagstar contended in part that the evidence presented by Chase on its motion was insufficient to establish that the satisfaction of mortgage was forged and, in any event, even if the satisfaction of mortgage was forged, Flagstar's interests were protected pursuant to Real Property Law § 266 based on its status as a bona fide encumbrancer for value.

In a decision dated December 13, 2017, the Supreme Court determined that the satisfaction of mortgage was forged, and that the branch of Chase's motion which was for summary judgment on its cause of action to vacate the satisfaction should be granted, determining that Chase had "adduced sufficient evidence that the satisfaction was neither executed by nor authorized by it or...