Suntrust Mortg., Inc. v. Andriopoulos

• Decision Date: 29 March 2013
• Docket Number: No. 11703/11.,11703/11.
• Citation: 971 N.Y.S.2d 75,39 Misc.3d 1208,2013 N.Y. Slip Op. 50543
• Court: New York Supreme Court
• Parties: SUNTRUST MORTGAGE, INC., Plaintiff, v. John ANDRIOPOULOS, Lisa Andriopoulos George Andriopoulos, Suntrust Mortgage Inc., Mortgage Electronic Registration Systems, Inc., Chase Manhattan Bank, Sears Roebuck & Co., LVNV Funding, LLC Asset Acceptance, LLC, Nassau Educations Federal Credit Union, et als, Defendants.

39 Misc.3d 1208

971 N.Y.S.2d 75

2013 N.Y. Slip Op. 50543

SUNTRUST MORTGAGE, INC., Plaintiff,

v.John ANDRIOPOULOS, Lisa Andriopoulos George Andriopoulos, Suntrust Mortgage Inc., Mortgage Electronic Registration Systems, Inc., Chase Manhattan Bank, Sears Roebuck & Co., LVNV Funding, LLC Asset Acceptance, LLC, Nassau Educations Federal Credit Union, et als, Defendants.

No. 11703/11.

Supreme Court, Suffolk County, New York.

March 29, 2013.

Berkman, Henoch Garden City, for Plaintiff.

Lieb at Law, PC. Center Moriches, for Defs J. & G.

THOMAS F. WHELAN, J.

Upon the following papers numbered 1 to 12 read on this motion for accelerated judgments, deletion of parties and appointment of referee and cross motion for summary judgment; Notice of Motion/Order to Show Cause and supporting papers 1–4; Notice of Cross Motion and supporting papers 5–8; Answering Affidavits and supporting papers 9–10; Replying Affidavits and supporting papers 11–12; Other; (and after hearing counsel in support and opposed to the motion, it is

ORDERED that this motion (# 001) by the plaintiff for accelerated judgments against the defendants, the appointment of a referee to compute and other incidental relief is considered under CPLR 3212, 3215 and RPAPL 1321 and is granted; and it is further

ORDERED that the cross motion (# 002) by defendants, John Andriopoulous and George Andriopoulous, for an order dismissing the complaint due to a purported lack of standing on the part of the plaintiff or, in the alternative, for leave to serve an amended answer and other relief, is considered under CPLR 3211, 3212, 3025, 3408 and 3126 and is denied.

The plaintiff commenced this action to foreclose a February 21, 2007 mortgage on residential real property situated in Lindenhurst, New York given by the three Andriopoulous defendants. Said mortgage served as security for a mortgage note of the same date executed by defendant, John Andriopoulous, in the principal amount of $274,200.00. Both the note and mortgage of Febraury 21, 2007 were transacted by defendant John Andriopoulous by his attorney-in-fact, co-defendant, Lisa Andriopoulous. The complaint charges the obligor and mortgagor defendants with a default in payment on April 1, 2010. Issue was joined solely by service of an answer by defendants, John and George Andriopoulous, as all other defendants defaulted in answering. The answer served contains one general denial of all allegations advanced in the complaint and some twelve affirmative defenses, including that the plaintiff lacks standing to maintain this action.

The plaintiff now moves for an order: (1) awarding it summary judgment against the answering defendants together with dismissal of the twelve affirmative defenses set forth in their answer; (2) fixing the defaults in answering of the non-answering defendants; (3) deleting as party defendants the unknown defendants listed in the caption; and (4) appointing a referee to compute amounts due under the subject mortgage. Answering defendants, John and George ANDRIOPOULOS, oppose the plaintiff's motion-in-chief in cross moving papers. Therein, the answering defendants demand dismissal of the complaint on their lack of standing defense that is advanced in their answer as their THIRD affirmative defense. Alternatively, the answering defendants seek leave to amend their answer so as to assert a new defense sounding in champerty. In addition, the answering defendants seek a return of this action to the specialized mortgage foreclosure part and a conditional order striking the complaint in the event the plaintiff fails to serve a bill of particulars or fails to respond to discovery demands. For the reasons stated below, the plaintiff's motion-in-chief is granted while the cross motion of the defendants is in all respect denied.

“Entitlement to a judgment of foreclosure may be established, as a matter of law, where a mortgagee produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact” (Zanfini v. Chandler, 79 AD3d 1031, 912 N.Y.S.2d 911 [2d Dept 2010], quoting HSBC Bank USA v. Merrill, 37 AD3d 899, 900, 830 N.Y.S.2d 598 [2d Dept 2010]; see Bank Natl. Ass'n. v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012]; Citibank, N.A. v. Van Brunt Prop., LLC, 95 AD3d 1158, 945 N.Y.S.2d 330 [2d Dept 2012]; HSBC Bank v. Shwartz, 88 AD3d 961, 931 N.Y.S.2d 528 [2d Dept 2011]; US Bank N.A. v. Eaddy, 79 AD3d 1022, 1022, 914 N.Y.S.2d 901 [2010] ). Where, as here, an answer served includes the defense of standing or lack of capacity to sue, the plaintiff must further establish its standing to succeed on a motion for summary judgment ( see U.S. Bank, N.A. v. Adrian Collymore, 68 AD3d 752, 890 N.Y.S.2d 578 [2d Dept 2009] ).

Here, the moving papers established the plaintiff's entitlement to summary judgment on its foreclosure complaint to the extent it asserts claims against the answering defendants as such papers included copies of the mortgage, the unpaid note executed together with due evidence of a default under the terms thereof secured by the mortgage ( seeCPLR 3212; RPAPL § 1321; US Bank Natl. Ass'n. v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012]; Neighborhood Hous. Serv. of New York City v. Hawkins, 97 AD3d 554, 947 N.Y.S.2d 321 [2d Dept 2012]; Baron Assoc., LLC v. Garcia Group Enter., 96 AD3d 793, 946 N.Y.S.2d 611 [2d Dept 2012]; Washington Mut. Bank v. Valencia, 92 AD3d 774, 939 N.Y.S.2d 73 [2d Dept 2012]; Archer Capital Fund, L.P. v. GEL, LLC, 95 AD3d 800, 944 N.Y.S.2d 179 [2d Dept 2012]; Rossrock Fund II, L.P. v. Osborne, 82 AD3d 737, 918 N.Y.S.2d 514 [2d Dept 2011] ). The moving papers further established, prima facie, that the plaintiff was the original lender and as such, the owner of the note at the time of the commencement of this action and thus had standing to sue. The moving papers also included sufficient proof to establish that each of the remaining affirmative defenses set forth in the answer of the defendants are subject to dismissal due to their total lack of merit ( see e.g., Liberty Pointe Bank v. 7 Waterfront Prop., LLC, 94 AD3d 1061, 942 N.Y.S.2d 610 [2d Dept 2012]; Wells Fargo Bank, N.A. v. Cohen, 80 AD3d 753, 915 N.Y.S.2d 569 [2d Dept 2010]; La Salle Bank Natl. Ass'n. v. Kosarovich, 31 AD3d 904, 820 N.Y.S.2d 144 [3d Dept 2006]; Grogg Assocs. v. South Rd. Assocs., 74 AD3d 1021, 907 N.Y.S.2d 22 [2d Dept 2010] ). Indeed, the lack of merit in several of these affirmative defenses, including those that charge the plaintiff with pleading omissions and a purported failure to state a claim for foreclosure and sale, are flatly contradicted by a reading of the complaint. The plaintiff thus established a prima facie entitlement to the summary judgment and other relief demanded in its moving papers.

It was thus incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of the affirmative defenses asserted in their answer or otherwise available to them ( see Flagstar Bank v. Bellafiore, 94 AD3d 1044, 943 N.Y.S.2d 551 [2d Dept 2012]; Grogg Assocs. v. South Rd. Assocs., 74 AD3d 1021,supra; Wells Fargo Bank v. Karla, 71 AD3d 1006, 896 N.Y.S.2d 681 [2d Dept 2010]; Washington Mut. Bank v. O'Connor, 63 AD3d 832,880 N.Y.S.2d 696 [2d Dept 2009]; J.P. Morgan Chase Bank, N.A. v. Agnello, 62 AD3d 662, 878 N.Y.S.2d 397 [2d Dept 2009]; Aames Funding Corp. v. Houston, 44 AD3d 692, 843 N.Y.S.2d 660 [2d Dept 2007] ). Notably, self-serving and conclusory allegations do not raise issues of fact and do not require plaintiff to respond to alleged affirmative defenses which are based on such allegations ( see Charter One Bank, FSB v. Leone, 45 AD3d 958, 845 N.Y.S.2d 513 [3d Dept 2007]; Rosen Auto Leasing, Inc. v. Jacobs, 9 AD3d 798, 780 N.Y.S.2d 438 [3d Dept 2004] ). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movants' 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 [1975];see also Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 AD3d 606, 957 N.Y.S.2d 88 [1st Dept 2012]; Argent Mtge. Co., LLC v. Mentesana, 79 AD3d 1079, 915 N.Y.S.2d 591 [2d Dept 2010] ). A review of the opposing papers submitted by the defendants reveals that the same were insufficient to raise any genuine question of fact requiring a trial on the merits of the plaintiff's claims for foreclosure and sale and insufficient to demonstrate any bona fide defense to the plaintiff's claim for a judgment of foreclosure and sale ( see Cochran Inv. Co., Inc. v. Jackson, 38 AD3d 704, 834 N.Y.S.2d 198 [2d Dept 2007] ).

The only pleaded defense raised by the answering defendants on these motions was the lack of standing defense which was asserted as the THIRD affirmative defense in their answer. The failure to raise and/or assert each of the remaining pleaded defenses in opposition to the plaintiff's motion for summary judgment warrants the dismissal of these abandoned affirmative defenses under the case authorities cited above ( see Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539,supra; Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 AD3d 606,supra ).

With respect to the lack of standing defense, the court finds that such defense is without merit. 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 U.S. Bank of N.Y. v. Silverberg, 86 AD3d 274, 279, 926 N.Y.S.2d 532 [2d Dept 2011]; US Bank, N.A. v. Adrian Collymore, 68 AD3d 752,supra; Wells Fargo Bank, N.A. v. Marchione, 69 AD3d 204, 887 N.Y.S.2d 615 [2d Dept...