U.S. Bank Nat'l Ass'n v. Bochicchio

• Court: New York Supreme Court — Appellate Division
• Citation: U.S. Bank Nat'l Ass'n v. Bochicchio, 179 A.D.3d 1133, 118 N.Y.S.3d 191 (N.Y. App. Div. 2020)
• Decision Date: 29 January 2020
• Docket Number: 2017–04095,2017–04097,Index No. 36270/11
• Parties: US BANK NATIONAL ASSOCIATION, etc., respondent, v. Robert P. BOCHICCHIO, appellant, et al., defendants.

179 A.D.3d 1133

118 N.Y.S.3d 191

US BANK NATIONAL ASSOCIATION, etc., respondent,

v.Robert P. BOCHICCHIO, appellant, et al., defendants.

2017–04095

2017–04097

Index No. 36270/11

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

Submitted - October 22, 2019

January 29, 2020

Robert P. Bochicchio, Nesconset, NY, appellant pro se.

Hogan Lovells US LLP, New York, NY (David Dunn, Christian Fletcher, and Gabrielle B. Mannuzza of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclosure a mortgage, the defendant Robert P. Bochicchio appeals from two orders of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), both dated February 21, 2017. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike his answer, and for an order of reference, and, in effect, denied that defendant's application, in effect, to direct the plaintiff to provide him with a modification agreement based on his acceptance of a Home Affordable Modification Program loan trial period plan, and, in effect, for summary judgment dismissing the complaint insofar as asserted against him. The second order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike his answer, and for an order of reference, and appointed a referee to ascertain and compute the amount due to the plaintiff.

ORDERED that on the Court's own motion, the notice of appeal from so much of the first order as, in effect, denied the application of the defendant Robert P. Bochicchio, in effect, to direct the plaintiff to provide him with a modification agreement based on his acceptance of a Home Affordable Modification Program loan trial period plan, and, in effect, for summary judgment dismissing the complaint insofar as asserted against him, is deemed to be an application for leave to appeal from those portions of the order, and leave to appeal from those portions of the order is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the orders are affirmed insofar as appealed from; and it is further,

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

On February 28, 2006, the defendant Robert P. Bochicchio (hereinafter the defendant) executed a note in the principal sum of $382,500. The note was secured by a mortgage on certain residential property located in Suffolk County. On October 24, 2008, the defendant entered into a loan modification agreement which, inter alia, modified the unpaid principal balance on the note to $390,691.09. The defendant allegedly defaulted by failing to make the monthly payment due on May 1, 2009, and all subsequent payments thereafter. In September 2009, the defendant accepted a Home Affordable Modification Program (hereinafter HAMP) loan trial period plan, pursuant to which he made 11 payments of $1,026.79 between September 2009 and August 2010. By letter dated August 20, 2010, the plaintiff informed the defendant that he was not approved for a loan modification due to his failure to provide all the information needed within the required time frame. The plaintiff refunded to the defendant a total of $8,316.70 from the payments he made pursuant to the loan trial period plan. According to the plaintiff, the defendant's loan was reviewed on three separate occasions between October 2009 and August 2010.

In November 2011, the plaintiff, alleging that it was the owner and holder of the note, commenced the instant foreclosure action against the defendant, among others. The defendant interposed an answer in which he asserted various affirmative defenses and counterclaims. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. The defendant opposed the motion and made an application, in effect, to direct the plaintiff to provide him with a modification agreement based on his acceptance of a HAMP loan trial period plan, and, in effect, for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference, and, in effect, denied the defendant's application. The defendant appeals.

" ‘Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default’ " ( U.S. Bank N.A. v. Sabharwal, 175 A.D.3d 1454, 1455, 109 N.Y.S.3d 191, quoting Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). Where, as here, "the issue of standing is raised by a defendant in a mortgage foreclosure action, a plaintiff must prove its standing in order to be entitled to relief against that defendant" ( Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 203, 97 N.Y.S.3d 286 ). "A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced" ( id. at 203, 97 N.Y.S.3d 286 [internal quotation marks omitted]; see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 360–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" ( Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 203, 97 N.Y.S.3d 286 [internal quotation marks omitted]; Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 [internal quotation marks omitted]; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ).

Here, the plaintiff produced the mortgage, the unpaid note, and evidence of the default in the repayment of the loan. The plaintiff also established, prima facie, its standing to commence the action by demonstrating that it had physical possession of the note at the time it commenced the action, as evidenced by its attachment of a copy of the note, endorsed in blank, to the summons and complaint (see U.S. Bank, N.A. v. Nathan, 173 A.D.3d 1112, 1114, 104 N.Y.S.3d 144 ; Wells Fargo Bank, N.A. v. Ballard, 172 A.D.3d 1440, 1441–1142, 102 N.Y.S.3d 229 ; U.S. Bank N.A. v. Fisher, 169 A.D.3d 1089, 1090–1091, 95 N.Y.S.3d 114 ). Contrary to the defendant's contention, in opposition, he failed to raise a triable issue of fact as to whether the plaintiff had standing (see U.S. Bank N.A. v. Fisher, 169 A.D.3d at 1090–1091, 95 N.Y.S.3d 114 ). "[T]here is no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it" ( id. at 1091, 95 N.Y.S.3d 114 ; see JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ). Thus, we need not address the validity of the various assignments of mortgage contained in the record (see U.S. Bank N.A. v. Sabharwal, 175 A.D.3d 1454, 109 N.Y.S.3d 191 ).

"In a residential foreclosure action, a plaintiff moving for summary judgment must tender sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304" ( HSBC Bank USA, N.A. v. Bermudez, 175 A.D.3d 667, 669, 107 N.Y.S.3d 138 [internal quotation marks omitted] ). RPAPL 1304(1) provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower ..., including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." "The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower" ( Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d 17, 20, 98 N.Y.S.3d 273 ; see RPAPL 1304[2] ). Strict compliance with RPAPL 1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action (see Citibank, N.A. v. Conti–Scheurer, 172 A.D.3d at 20, 98 N.Y.S.3d 273 ; Citimortgage, Inc. v. Banks, 155 A.D.3d 936, 936–937, 64 N.Y.S.3d 121 ; HSBC Bank USA, N.A. v. Ozcan, 154 A.D.3d 822, 825–826, 64 N.Y.S.3d 38 ; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 103, 923 N.Y.S.2d 609 ). "By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to...