Loancare, of FNF Servicing, Inc. v. Avelin, INDEX NO.: 6226-12

Decision Date25 March 2014
Docket NumberINDEX NO.: 6226-12
PartiesLOANCARE, A DIVISION OF FNF SERVICING, INC. Plaintiff, v. SUSAN AVELIN A/K/A SUSAN M. AVELIN THOMAS AVELIN A/K/A THOMAS E. AVELIN BENEFICIAL NEW YORK, INC. CAVALRY PORTFOLIO SERVICES, LLC A/A/O CAVALRY SPV I, LLC A/A/O HSBC BANK NEVADA, N.A. and "JOHN DOE #1" to "JOHN DOE #10", the last 10 names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants.
CourtNew York Supreme Court

2014 NY Slip Op 31630(U)

LOANCARE, A DIVISION OF FNF SERVICING, INC. Plaintiff,
v.
SUSAN AVELIN A/K/A SUSAN M. AVELIN THOMAS AVELIN A/K/A
THOMAS E. AVELIN BENEFICIAL NEW YORK, INC.
CAVALRY PORTFOLIO SERVICES, LLC A/A/O CAVALRY SPV I,
LLC A/A/O HSBC BANK NEVADA, N.A. and "JOHN DOE #1" to "JOHN DOE #10",
the last 10 names being fictitious and unknown to plaintiff,
the persons or parties intended being the persons or parties,
if any, having or claiming an interest in or lien upon the
mortgaged premises described in the verified complaint, Defendants.

INDEX NO.: 6226-12

SUPREME COURT - STATE OF NEW YORK IAS PART 43 - SUFFOLK COUNTY

March 25, 2014


SHORT FORM ORDER

PRESENT: Hon. ARTHUR G. PITTS
Justice of the Supreme Court

MOTION DATE: 7-11-13
ADJ. DATE: 8-13-13
Mot.
Seq. # 001-MG

McCABE, WEISBERG & COMPANY, PC
Attorneys for Plaintiff

RONALD D. WEISS P.C.
Attorneys for Defendant

SCHACTER PORTNOY, L.L.C.
Attorneys for Defendant
Calvary Portfolio Services, LLC

Upon the following papers numbered 1 to 28 read on this motion for summary judgment; Notice of Motion/Order to Show Cause and supporting papers 1 - 15; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers 16 - 19; Replying Affidavits and supporting papers 21 - 28; Other ___; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that this motion by the plaintiff/counterclaim-defendant for, inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its favor and against the defendant/counterclaim-plaintiff Susan Avelin, striking her answer and dismissing the affirmative defenses and counterclaims set forth therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL § 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) amending the caption is determined as indicated below; and it is

ORDERED that the plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of this Court; and it is further

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ORDERED that the plaintiff is directed to serve a copy of this Order with notice of entry upon all parties who have appeared herein and not waived further notice pursuant to CPLR 2103(b)(1), (2) or (3) within thirty (30) days of the date herein, and to promptly file the affidavits of service with the Clerk of the Court.

This is an action to foreclose a mortgage on residential real property known as 411 Clay Pitts Road, East Northport, New York 11731. On May 30, 2009, the defendants Susan Avelin and Thomas Avelin (the defendant mortgagors) executed a fixed-rate note in favor of Lend America (the lender) in the principal sum of $540,546.00. To secure said note, the defendant mortgagors gave the lender a mortgage also dated May 30, 2009 on the property. The mortgage indicates that Mortgage Electronic Registration Systems, Inc. (MERS) was acting solely as a nominee for the lender and its successors and assigns and that, for the purposes of recording the mortgage, MERS was the mortgagee of record. By way of an endorsed allonge affixed to the note and two assignments of the mortgage, the loan instruments were allegedly transferred to the plaintiff, LoanCare, a Division of FNF Servicing, Inc.

The defendant mortgagors allegedly defaulted on the note and mortgage by failing to make the monthly payment of principal and interest due on or about April 1, 2010, and each month thereafter. After the defendant mortgagors allegedly failed to cure their default, the plaintiff commenced the instant action by the filing of a lis pendens, summons and verified complaint on February 21, 2012.

Issue was joined by the interposition of the defendant Susan Avelin's verified answer dated March 20, 2012. By her answer, Mrs. Avelin admits the property address and description, but denies the remaining allegations in the complaint. In the answer, Mrs. Avelin also asserts fourteen affirmative defenses and two counterclaims, alleging, among other things, the alleged lack of standing; failure to serve a 90-day notice; a predatory loan; wrongful foreclosure; a fraudulent loan; bad faith and misrepresentations consisting of false promises; failure to provide a loan modification; defective service; violations of the Fair Debt Collection Practices Act (FDCPA), 15 USC § 1692; a violation of the Truthin Lending Act (TILA), 15 USC § 1601, et seq.; compliance with CPLR 3408; and improper loan documentation. By her counterclaims, Mrs. Avelin alleges, among other things, that the plaintiff improperly refused to accept partial payments from her, and that its representatives made false promises to her regarding a potential loan modification. Parenthetically, no affirmative relief is sought in the counterclaims; instead, Mrs. Avelin merely alleges that the plaintiff is liable to her for the costs of losing or potentially losing the defendant mortgagors' home. The defendant Calvary Portfolio Services, LLC a/a/o Calvary SPV I, LLC a/a/o HSBC Bank Nevada, N.A. (Calvary) appeared in this action and waived all, but certain, notices. The remaining defendants have neither answered nor appeared.

The plaintiff/counterclaim-defendant now moves for, inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its favor and against Mrs. Avelin, striking her answer and dismissing the affirmative defenses and counterclaims set forth therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL § 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) amending the caption. Opposition and reply papers have been filed herein.

A plaintiff in a mortgage foreclosure action establishes a prima facie case for summary judgment by submission of the mortgage, the note, bond or obligation, and evidence of default (see, Valley Natl. Bank v

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Deutsch, 88 AD3d 691, 930 NYS2d 477 [2d Dept 2011]; Wells Fargo Bank v Das Karla, 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]; Washington Mut. Bank, F.A. v O'Connor, 63 AD3d 832, 880 NYS2d 696 [2d Dept 2009]). The burden then shifts to the defendant to demonstrate "the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff (Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882, 883, 895 NYS2d 199 [2d Dept 2010], quoting Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467, 644 NYS2d 345 [2d Dept 1997]).

Where, as here, an answer served includes the defense of standing or lack of capacity to sue, the plaintiff must prove its standing in order to be entitled to relief (see, CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 931 NYS2d 638 [2d Dept 2011]). The standing of a plaintiff in a mortgage foreclosure action is measured by its ownership, holder status or possession of the note and mortgage at the time of the commencement of the action (see, Bank of N. Y. v Silverberg, 86 AD3d 274, 926 NYS2d 532 [2d Dept 2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]). A mortgage "is merely security for a debt or other obligation, and cannot exist independently of the debt or obligation" (Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 911, 961 NYS2d 200 [2d Dept 2013] [internal quotation marks and citations omitted]). Holder status is established where the plaintiff is the special indorsee of the note or takes possession of a mortgage note that contains an endorsement in blank on its face or attached thereto, as the mortgage follows an incident thereto (see, Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 838 NYS2d...

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