Wells Fargo Bank, N.A. v. Muskopf
| Decision Date | 08 August 2014 |
| Docket Number | No. 13013/2012.,13013/2012. |
| Citation | 999 N.Y.S.2d 799 (Table) |
| Parties | WELLS FARGO BANK, N.A., Plaintiff, v. William MUSKOPF, GMAC Mortgage Corporation, d/b/a Ditech.Com, The Board Of Managers of the Anchorage Condominium, and John Doe # 1 to John Doe # 25 said names being fictitious, the persons or parties intended being persons, parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants. |
| Court | New York Supreme Court |
Hogan Lovells US, LLP, New York City, for Plaintiff.
Kenneth S. Pelsinger, Esq., Levittown, for Defendant, Muskopf.
Albanese & Albanese, Esqs., Garden City, for defendant, Board of Managers of the Anchorage Condo.
Upon the following papers numbered 1 to 14 read on this motion by the plaintiff for accelerated judgments, substition and/or deletion of party defendants and the appointment of a referee to compute; Notice of Motion/Order to Show Cause and supporting papers 1–6; Notice of Cross Motion and supporting papers; Answering papers 7–12; Reply papers 13–14; Other; (and after hearing counsel in support and opposed to the motion)the instant motion, it is,
ORDERED that this motion (# 001) by the plaintiff for accelerated judgments on its complaint and an order of reference is considered under CPLR 3212, 3215 and RPAPL § 1321 and is granted.
The plaintiff commenced this action on April 26, 2012 to foreclose a January 28, 2004 mortgage given on real property situated in Copaigue, New York by defendant Muskopf to secure a mortgage note of the same date executed by such defendant in favor of First Magnus Financial Corporation.The plaintiff alleges that a default in payment occurred on October 1, 2011, and that such default was a continuing one at the time of the filing of the complaint.
Issue was joined by service of an answer by the obligor/mortgagor defendant dated May 31, 2012. Therein, defendant Muskopf asserts seventeen affirmative defenses, several of which, challenge the standing of the plaintiff and forty-three counterclaims which are also denominated as affirmative defenses. Defendant Board of Managers of the Anchorage Condominium appeared herein without answering by service of a notice of appearance and demand for notice of certain documents.
By the instant motion, the plaintiff moves for summary judgment dismissing the affirmative defenses and counterclaims advanced in the answer of defendant Muskopf and for summary judgment on its complaint against such defendant. In addition, the plaintiff seeks an order identifying a person served as John Doe # 1 pursuant to CPLR 2018 and the deletion of the remaining unknown defendants and an amendment of the caption to reflect same. The plaintiff further seeks an order fixing the defaults in answering of the newly identified defendant and of known defendants listed in the caption, other than answering defendant Muskopf, together with the appointment of referee to compute.
The motion is opposed by defendant Muskopf, who asserts in his affidavit in opposition the following: 1) that the plaintiff improperly “forced placed” overly expensive insurance on the subject premises which allegedly caused him to default in his payment obligations; 2) that the plaintiff is not now and was not the owner the owner of the subject note and mortgage at the time of the commencement of this action under the terms of a written assignment executed by Mortgage Electronic Registration Systems, Inc. [hereinafter “MERS]; and 3) that the plaintiff failed to comply with the contractual notice of default and the ninety-day pre-foreclosure notice requirements imposed by RPAPL § 1304. He concludes by urging the court to deny the plaintiff's motion for these reasons and those advanced in the memorandum of law submitted by his defense counsel. Therein, counsel advances only forty-four of the sixty total numbered affirmative defenses and thirty-two of the forty-three counterclaims asserted in the answer.For the reasons stated below, the motion is granted.
“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 Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 986 N.Y.S.2d 843 [2d Dept.2014] ; Bank Nat. Ass'n v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [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 Peak Financial Partners, Inc. v. Brook, 119 AD3d 539, 987 N.Y.S.2d 916 [2d Dept 2014] ; Kondaur Capital Corp. v. McCary, 115 AD3d 649, 981 N.Y.S.2d 547 [2d Dept 2014] ; U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 890 N.Y.S.2d 578 [2d Dept 2009] ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 242, 837 N.Y.S.2d 247 [2d Dept 2007] ).
The foregoing rules are discernible from the general precept that the standing of a plaintiff is not an element of his or her claim (see id., at 42 AD3d 250; see also Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 986 N.Y.S.2d 843 [2d Dept 2014] ). This is particularly evident in the mortgage foreclosure arena wherein recent appellate case authorities have repeatedly held that a lack of standing is merely an affirmative defense which must be timely raised by a defendant possessed of such defense or it is waived (see CPLR 3018[b] ; CPLR 3211[e] ; JP Morgan Mtge. Acquisition Corp. v. Hayles, 113 AD3d 821, 979 N.Y.S.2d 620 [2d Dept 2014] ; Deutsche Bank Trust Co. Americas v. Cox, 110 AD3d 760, 973 N.Y.S.2d 662, [2d Dept 2013 U.S. Bank Natl. Ass'n v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012] ; Capital One, N.A. v. Knollwood Prop. II, LLC, 98 AD3d 707, 950 N.Y.S.2d 482 [2d Dept 2012] ; Countrywide Home Loans, Inc. v. Delphonse, 64 AD3d 624, 883 N.Y.S.2d 135 [2d Dept 2009] ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, supra ). The defense of standing is not jurisdictional in nature (see Bank of New York v. Mulligan, 119 AD3d 716, 989 N.Y.S.2d 295 [2d Dept 2014] ; Wells Fargo Bank, N.A. v. Gioia, 114 AD3d 766, 980 N.Y.S.2d 535 [2s Dept 2014] ; Citimortgage, Inc. v. Friedman, 109 AD3d 573, 970 N.Y.S.2d 706 [2d Dept.2013] ; HSBC Bank USA, N.A. v.. Taher, 104 AD3d 815, 962 N.Y.S.2d 301 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Pietranico, 102 AD3d 724, 957 N.Y.S.2d 868 [2d Dept 2013] ; US Bank Natl. Ass'n v. Tate, 102 AD3d 859, 958 N.Y.S.2d 722 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Hunter, 100 AD3d 810, 954 N.Y.S.2d 181 [2d Dept 2012] ; Bank of New York v. Alderazi, 99 AD3d 837, 951 N.Y.S.2d 900 [2d Dept 2012] ; U.S. Bank Natl. Ass'n. v. Denaro, 98 AD3d 964, supra; U.S. Bank v. Emmanuel, 83 AD3d 1047, 921 N.Y.S.2d 320 [2d Dept 2011] ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 242–244, supra ). The prosecution of a claim by one without standing is not an actionable wrong, as the claimant may prevail even in the absence of standing and such prosecution does not vitiate or otherwise affect the validity of the mortgage (see Homar v. American Home Mortg. Acceptance, Inc., 119 AD3d 900, 2014 WL 3732875 [2d Dept 2014] ; US Bank, NA v. Reed, 38 Misc.3d 1206, 967 N.Y.S.2d 870 [Sup.Ct. Suffolk Cty.2013] ).
“In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” (Citimortgage, Inc. v. Friedman, 109 AD3d 573, 970 N.Y.S.2d 706 [2d Dept 2013], quoting Bank of N.Y. v. Silverberg, 86 AD3d 274, 279, 926 N.Y.S.2d 532 [2d Dept 2011] ; see W & H Equities LLLC v. Odums, 113 AD3d 840, 978 N.Y.S.2d 910 [2d Dept 2014] ). Under the principal/incident rule, a mortgage may not stand separate from the note evidencing the principal debt or obligation because the mortgage is merely security therefor (see Weaver Hardware Co. v. Solomovitz, 235 N.Y. 321, 331–332, 139 NE 353 [1923];US Bank of N.Y. v. Silverberg, 86 AD3d 274, 280, supra ). Accordingly, a mortgage passes as an incident of the note upon such note's written assignment, physical delivery or its indorsement and delivery (see Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931, 969 N.Y.S.2d 82 [2d Dept 2013] ; One West Bank FSB v. Carey, 104 AD3d 444, 960 N.Y.S.2d 306 [1st Dept 2013] ; Deutsche Bank Trust Co. Am. v. Codio, 94 AD3d 1040, 943 N.Y.S.2d 545 [2d Dept 2012] ; GRP Loan, LLC v. Taylor, 95 AD3d 1172, 945 N.Y.S.2d 336 [2d Dept 2012] ). In all cases wherein the plaintiff is one other than the original mortgage lender, a valid transfer of the note, which effects a valid transfer of the mortgage under the principal/incident rule, will resolve the standing issue in favor of the plaintiff (see Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931, supra; One West Bank FSB v. Carey, 104 AD3d 444, supra; US Bank Natl. Ass'n v. Cange, 96 AD3d 825, 947 N.Y.S.2d 522 [2d Dept 2012] ; Deutsche Bank Trust Co. Am. v. Codio, 94 AD3d 1040,supra; Bank of New York Mellon Trust Co. NA v. Sachar, 95 AD3d 695, 943 N.Y.S.2d 893 [1st Dept 2012] ).
Holder status of a note and mortgage is established where the plaintiff possesses the mortgage note which bears, on its face or by allonge, a special indorsement payable to the order of the plaintiff or where it takes possession of a mortgage note that contains an indorsement in blank similarly affixed (see UCC § 1–201[20] ; § 3–202; § 3–204; § 9–203[g]; Spielman v. Manufacturers...
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