N.Y. Cmty. Bank v. Jennings

• Decision Date: 05 August 2015
• Docket Number: Index No. 19753 2013
• Citation: 2015 NY Slip Op 31591 (U)
• Parties: NEW YORK COMMUNITY BANK, Plaintiff(s), v. EDGAR JENNINGS, et al., Defendant(s).
• Court: New York Supreme Court

2015 NY Slip Op 31591(U)

NEW YORK COMMUNITY BANK, Plaintiff(s), v. EDGAR JENNINGS, et al., Defendant(s).

Index No. 19753 2013

NEW YORK SUPREME COURT - QUEENS COUNTY IAS Part 14

August 5, 2015

Short Form Order

Present: HONORABLE DAVID ELLIOT Justice

Motion Date June 24, 2015

Motion Cal. No. 108

Motion Seq. No. 1

The following papers numbered 1 to 14 read on this motion by plaintiff for an order, inter alia, granting it summary judgment against defendant Leslie Antoinette Jennings, as Administratrix of the Estate of Fay Jennings a/k/a Fay M. Jennings a/k/a Fay Michelle Jennings, (Leslie Jennings), striking her answer, affirmative defenses, and counterclaims, awarding judgment by default against the remaining defendants herein, amending the caption, discontinuing the action against defendant Edgar Jennings, and appointing a referee to compute.

Papers

Numbered

Notice of Motion - Affirmation - Exhibits

1-5

Answering Affirmation - Exhibits

6-9

Reply

10-14

Upon the foregoing papers it is ordered that the motion is determined as follows:

Plaintiff commenced this action on October 24, 2013, to foreclose a home equity mortgage given by Edgar and Fay Jennings as security for the payment of a note evidencing a loan in the amount not to exceed $100,000.00 plus interest from Queens County SavingsBank (QCSB) on the real property known as 23-25 101^st Street, East Elmhurst, New York. In the complaint, plaintiff alleged that it is the holder of the note, that defendant(s) have defaulted in payment of the mortgage installment due on July 10, 2012, pursuant to the note and mortgage, and, as a consequence, has elected to declare the entire unpaid balance immediately due and owing.

Defendant Leslie Jennings, who is an attorney, served and filed a pro se verified answer. Plaintiff submitted affidavits of service of process with respect to this defendant, as well as defendants Criminal Court of the City of New York, New York City Parking Violations Bureau, New York State Department of Taxation and Finance, United States of America, Sandra Russell as heir and distributee to the estate of Fay Jennings a/k/a Fay M. Jennings a/k/a Fay Michelle Jennings s/h/a "John Doe #1," Miriam Lovett as heir and distributee to the estate of Fay Jennings a/k/a Fay M. Jennings a/k/a Fay Michelle Jennings s/h/a "John Doe #2," and Edgar Jennings, Jr., as heir and distributee to the estate of Fay Jennings a/k/a Fay M. Jennings a/k/a Fay Michelle Jennings s/h/a "John Doe #3." Those defendants have not answered or otherwise appeared herein, with the exception of "Estate of Fay Jennings and Sandra Russell" (Sandra Russell) who appeared by counsel by opposing the instant motion.

A residential foreclosure conference was held on May 15, 2014. By order dated the same date, the Court Attorney-Referee noted that Sandra Russell, who appeared therefor, indicated that both her parents, Edgar and Fay Jennings, were deceased, that she was in the process of being substituted as administrator, and that "[t]he intention is to sell the property - it has equity." Plaintiff was directed to file an application seeking an order of reference by November 25, 2014. By status conference order dated that date, plaintiff was again directed to file an application seeking an order of reference by August 25, 2015. This motion was filed within that time period, on March 4, 2015. As noted, supra, both Sandra Russell and Leslie Jennings oppose the motion.

That branch of the motion for an order discontinuing the action against Edgar Jennings is granted, said defendant having predeceased both the commencement of this action as well as his wife Fay Jennings; his interest, thus, passed to her, by operation of law (see discussion, infra). To the extent Sandra Russell argues that plaintiff should have named the Estate of Edgar Jennings in the complaint, same was unnecessary, considering the fact that: (1) all of Edgar Jennings' interest in the premises passed to his wife - with whom he held the property, together as tenants by the entirety - upon his death and; (2) by virtue of plaintiff's desire to discontinue the action against Edgar Jennings, it is clear that plaintiff is not seeking a deficiency judgment against his estate (see HSBC Bank USA v Ungar Family Realty Corp., 111 AD3d 673 [2013]; Bank of New York Mellon Trust Co. v Ungar FamilyRealty Corp., 111 AD3d 657 [2013]; Financial Freedom Sr. Funding Corp. v Rose, 64 AD3d 539 [2009]).

That branch of the motion for an order substituting the above-noted individuals, sued herein as "John Doe #1-3," is granted. However, plaintiff is not entitled to an order holding them in default in answering the complaint since it has not demonstrated that it properly served these defendants within 120 days after filing the complaint, as required by CPLR § 306-b, all of them having been served beyond such period. Moreover, the affidavits of service are insufficient to demonstrate that service was properly effected on them pursuant to CPLR § 308 (2), as it cannot be discerned therefrom where the mailings were made, indicating only that the envelopes which were mailed were "properly addressed" (see e.g. HSBC Bank USA, N.A. v Hamilton, 116 AD3d 663 [2014]).¹

Turning to that branch of plaintiff's motion which seeks summary judgment, it is well established that the proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

In support of its motion, plaintiff offers, among other things, a copy of the pleadings, the note and home equity mortgage, a copy of the order of Surrogate's Court, Queens County decreeing Leslie Jennings be issued letters of administration for the Estate of Fay Jennings, the affirmation of its counsel, the affidavit of Donna Wilson, Senior Vice President for plaintiff, dated January 9, 2015, and the affidavit of Christine Ackley, Assistant Vice President of NYCB Mortgage Company, LLC, a wholly owned subsidiary of plaintiff, successor in interest to QCSB, dated December 17, 2014. The copy of the note indicates that QCSB was the originator of the loan, and bears what appear to be the signatures of Edgar and Fay Jennings.

"Generally, a plaintiff in a mortgage foreclosure action is entitled to summary judgment if it establishes the existence of a mortgage, an unpaid note, and the defendant's default, and the defendant fails to raise a triable issue of fact in opposition" (PNC Bank, N.A.v Klein, 125 AD3d 953 [2015]; see NationStar Mtge., LLC v Silveri, 126 AD3d 864 [2015]; Wachovia Bank, N.A. v Carcano, 106 AD3d 724 [2013]; Swedbank, AB, N.Y. Branch v Hale Ave. Borrower, LLC, 89 AD3d 922 [2011], lv to appeal dismissed 19 NY3d 940 [2012]). Plaintiff asserts the original note no longer exists, having been lost, but that prior to the loss, the note had been held by it, and by QCSB before it.

UCC 3-804 makes manifest that a suit may be brought by the "owner" of a lost instrument, upon due proof of its ownership, facts which prevent the production of the instrument, and its terms. Furthermore, a court is authorized to require security indemnifying the obligor.²

The copy of the note submitted by plaintiff provides sufficient evidence of its terms. To the extent plaintiff relies upon the affidavit of Ms. Wilson and Ms. Ackley to demonstrate proof of its ownership of the note and an accounting for the absence of the note, Ms. Wilson states in her affidavit: that, on December 6, 2000, QCSB changed its name to New York Community Bank, plaintiff herein; that since the origination of the loan, same has never been sold, transferred, or otherwise assigned by either QCSB or plaintiff, as evidenced by what she refers to as a "revised Affidavit of Lost Note" of Ms. Ackley; and that plaintiff services the loan and it is the owner and holder of the note and mortgage. Ms. Wilson also indicates that Richmond County Savings Bank (RCSB) has never owned, held or otherwise been assigned the note or mortgage. Presumably she refers to an affidavit of Cono R. Mea, Vice President of plaintiff, dated September 4, 2013, which was annexed to the complaint but not provided on the motion, discussed, infra.

The affidavit of lost note of Ms. Ackley states that the lender, QCSB, is the lawful owner of the note and it has not canceled, altered, assigned or hypothecated the note, that a thorough and diligent search was undertaken and the original note could not be located, but that, based on her personal knowledge, that the photocopy of the note attached is a true copy of the missing note evidencing the obligation of the borrowers, and that the note is secured by a mortgage from said borrowers "which has been assigned to Assignee in connection with the sale of the Mortgage or Deed of Trust." No assignee is specifically named in her affidavit.

The affidavit of lost note of Mr. Mea, referenced above, states that the lender, RCSB, is the lawful owner of the note and it has not canceled, altered, assigned or hypothecated the note, that a thorough and diligent search was undertaken and the original note could not belocated, that a copy of the lost note is unavailable, but that, based on his personal knowledge, the information provided in his affidavit with respect to same is a true representation of the missing note evidencing the obligation of the borrowers, and that the note is secured by a mortgage from said borrowers "which lists the Lender or has been assigned to Assignee in connection with the sale of the Mortgage or Deed of Trust." No assignee is specifically named in his affidavit.

Plaintiff's submissions are insufficient to meet its prima facie burden in this case. Neither Mr. Mea nor Ms. Ackley demonstrates the basis for, respectively, his and her, personal knowledge. They both fail to discuss any procedures for the safekeeping and retrieval of...