Wilmington Tr. v. McGurk
| Citation | 2022 NY Slip Op 30875 (U) |
| Decision Date | 08 April 2022 |
| Docket Number | Index 135322/2018 |
| Parties | WILMINGTON TRUST, NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR MFRA TRUSTION 2014-2 Plaintiff, v. BRIAN W. MCGURK; DOROTHY ANN MCGURK; THOMAS S. KYLE, ESQ.; LAW OFFICE OF ROSEANN SCOTTO DIRINADI; PATRICE GENCO NICHAS; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY REGISTER; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; CITIFINANCIAL MORTGAGE COMPANY, INC.; "JOHN DOE #1" through "JOHN DOE #12," the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendants. Motions Nos. 003, 004 |
| Court | United States State Supreme Court (New York) |
Unpublished Opinion
DECISION AND ORDER
The following papers numbered 1-4 were fully submitted on November 17, 2020.
Plaintiffs Notice of Motion for Summary/Default Judgement, Appointment of a Referee to Compute, and to Vacate a Satisfaction of Mortgage (003), with the Affirmation of Annette Gershovich Esq. (dated January 14, 2020) (Exhibits Annexed) ...................1
Defendant's Notice of Cross-Motion to Dismiss and for Summary Judgment (004), with the Affirmation of Sarah Baldwin, Esq. (dated February 18, 2020) (Exhibits Annexed) and Memorandum of Law (dated February 18, 2020........... 2
Defendant's Memorandum of Law in Further Support of Defendant's Cross-Motion to Dismiss and for Summary Judgment on Defendant's Counterclaims (dated November 15 2020)............... 4
The court marked motions "003" and "004" fully submitted on November 17, 2020, and rules as follows Plaintiffs motion for summary judgment, appointment of referee, and vacatur of Satisfaction of Judgment is granted; Defendant's cross-motion for summary judgment is denied.
Plaintiff commenced this action for foreclosure with the filing of a Summons and Complaint on May 11, 2018. Defendant Dorothy Morrison a/ka Dorothy Ann McGurk (hereinafter "Defendant" or "Defendant McGurk"), filed a Verified Answer with counterclaims on August 20, 2018, and an Amended Answer with counterclaims on September 10, 2019, with Plaintiff filing a Reply to the counterclaims on September 27, 2018. Pursuant to CPLR §3408, Plaintiff and Defendant participated in a settlement conferenced in the Foreclosure Conference Part ("FCP") on October 23, 2018. The parties participated in a second conference on November 29, 2018, and the matter was then released to the Residential Foreclosure Part ("RFP").
On January 14, 2020, Plaintiff filed a motion seeking an order granting summary judgment, appointing a referee to compute, vacating a Satisfaction of Mortgage recorded with the Richmond County Clerk's Office on March 23, 2006 (Motion Sequence 003). Defendant filed a cross-motion seeking the dismissal of Plaintiffs action and in opposition to Plaintiffs motion on February 18, 2020.
Defendants, Dorothy McGurk and Brian McGurk (hereinafter "Mortgagors"), executed and delivered a note in the amount of $177, 264.67 on December 30, 2005, in connection with the property located at 81 Robinson Avenue, Staten Island, NY 10312 (hereinafter "Mortgaged Property"). Defendants executed, acknowledged, and delivered to Citifmancial Mortgage Company, Inc. a note, wherein they promised to repay to Citifmancial Mortgage Company, Inc., its successors or assigns, the principal sum with interest. To secure the payment of the sum represented by the note, Defendants executed and delivered to Citifmancial Mortgage Company, Inc. a consolidated, extension and modification agreement ("CEMA"), dated and acknowledged on December 30, 2005. The CEMA was recorded in the office of the Richmond County Clerk on February 3, 2006 (hereinafter "Consolidated Mortgage"). The Consolidated Mortgage, by its terms, consolidated the First Mortgage and the Second Mortgage[1] to form a single lien in the amount of $177, 264.67. However, on January 31, 2006, Citifmancial executed a Satisfaction and Discharge of the Mortgage and recorded it with the Richmond County Clerk's Office on March 23, 2006. Thereafter, the Richmond County Clerk's Office recorded an Assignment of Mortgage on May 16, 2017 assigning the subject mortgage to the Plaintiff.
Now, Plaintiff, as claimed assignee, moves for, inter alia, summary judgment against Dorothy McGurk (hereinafter "McGurk"), dismissal of affirmative defenses and counterclaims in Defendant McGurk's Answer, amending the caption to substitute named parties for the John Doe Defendants, or a default judgment against the non-appearing Defendants, vacatur of the erroneously recorded Satisfaction of Mortgage, and for an order of reference. Defendant McGurk opposes Plaintiffs motion and cross-moves for summary judgment.
A motion for summary judgment, may be granted only if the movant tenders sufficient evidence in admissible form demonstrating, prima facie, the absence of triable issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). If that burden is met, the burden shifts to the party opposing the motion to produce evidentiary proof in an admissible form establishing the existence of material issues of fact requiring trial (Zuckerman at 562).
Actions to foreclose upon a mortgage are governed by a six-year statute of limitations (CPLR §213[4]; Wells Fargo Bank, N.A. v Eitani, 148 A.D.3d 193, 197 [2d Dept 2017]; Wells Fargo Bank, N.A. v Burke, 94 A.D.3d 980 [2d Dept 2012]). When a mortgage is payable in installments, which is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitations on the entire debt (U.S. Bank N.A. v Joseph, 159 A.D.3d 968 [2d Dept 2018]; Stewart Tit. Ins. Co. v Bank of NY Mellon, 154 A.D.3d 656, 659 [2d Dept 2017]; Nationstar Mtge., LLC v Weisblum, 143 A.D.3d 866, 867 [2d Dept 2016]; EMC Mtge. Corp. v Patella, 279 A.D.2d 604, 605 [2d Dept 2001]). Determining precisely when a mortgage is accelerated is therefore a key aspect in any action or proceeding commenced pursuant to Real Property Actions and Proceedings Law (RPAPL) §1501 [4].
An acceleration of a mortgage debt may occur in different ways. One way is in the form of an acceleration notice transmitted to the borrower by the creditor or the creditor's servicer. To be effective, the acceleration notice to the borrower must be clear and unequivocal (Nationstar Mtge., LLC v Weisblum, 143 A.D.3d at 867; Wells Fargo Bank, N.A. v Burke, 94 A.D.3d at 983; Sarva v Chakravorty, 34 A.D.3d 438, 439 [2d Dept 2006]). A second form of acceleration, which is self-executing, is the obligation of certain borrowers to make a balloon payment under the terms of the note at the end of the pay-back period (Trustco Bank NY. v 37 Clark St., 157 Misc.2d 843, 844, 599 N.Y.S.2d 404 [Sup Ct, Saratoga County 1993]). A third form of acceleration exists when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due (Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476 [1932]; Clayton Natl, v Guldi, 307 A.D.2d 982 [2d Dept 2003]).
On the branch of its motion for summary judgment, Plaintiff is required to establish prima facie proof of the mortgage, the note, and evidence of the borrower's default (Rcr Servs. v Herbil Holding Co., 229 A.D.2d 379 [2d Dept 1996]; Vil. Bank v Wild Oaks Holding, 196 A.D.2d 812 [2d Dept 1993]; Marton Assoc, v Vitale, 172 A.D.2d 501 [2d Dept 1991]). Proof supporting a prima facie case on a motion for summary judgment must be in admissible form(CPLR §3212[b]; United States Bank N.A. v Rowe, 194 A.D.3d 978 [2d Dept 2021]). Plaintiff is also required to demonstrate its standing since Defendant McGurk raised this affirmative defense in her answer (Wells Fargo Bank, N.A. v Tricario, 180 A.D.3d 848 [2nd Dept 2020]; Wells Fargo Bank, N.A. v McKenzie, 186 A.D.3d 1582 [2d Dept 2020]). Additionally, based on the affirmative defenses raised, Plaintiff its obliged to prove its compliance with RPAPL §1304, §1306 (U.S. Bank, NA v Nathan, 173 A.D.3d 1112 [2d Dept 2019]; HSBC Bank USA, N.A. v Bermudez, 175 A.D.3d 667, 669 [2d Dept 2019]).
In support of the branch of the motion for summary judgment, Plaintiff submitted the affidavit of Cindy Vazquez (hereinafter "Vasquez"), a foreclosure specialist of Fay Servicing, LLC, attorney-in-fact for the named Plaintiff. Vazquez's affidavit laid a proper foundation for the admission of Plaintiff s records into evidence under CPLR §4518 (Bank of NY Mellon v Gordon, 171 A.D.3d 197 [2d Dept 2019]). Vazquez sufficiently established that the records of other entities are likewise admissible as they are incorporated into the records that Plaintiff routinely relies upon in its business (U.S. Bank N.A. v Kropp-Somoza, 191 A.D.3d 918 [2d Dept 2021]). Vazquez further relied on records referenced and annexed to the motion (Nationstar Mtge., LLC v Durane-Bolivard, 175 A.D.3d 1308 [2d Dept 2019]). Vazquez's affidavit and the referenced documents sufficiently evidenced the note and mortgage.
Standing in a foreclosure action is established in one of three ways [1] direct privity between mortgagor and mortgagee, [2] physical possession of the note prior to commencement of the action...
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