Opinion
INDEX NUMBER: 23085-10
07-07-2014
BAC Home Loan Servicing, LP FKA Countrywide Home Loans Servicing, LP, Plaintiff, v. Denise Baez, John Baez, Chase Bank USA, NA, Discover Bank, Household Finance Corporation Ill, HSBC Bank Nevada NA, Indymac Federal Bank, FSB fka Indymac Bank, F.S.B., LHR, Inc., LVNV Funding LLC, People of the State of New York, JOHN DOE (Said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises.) Defendants.
Attorney for Plaintiff FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP 53 Gibson Street Bay Shore, N. Y. 11706 Defendant Pro Se John Baez 2 Durham Court Northport, N. Y. 11768 Denise Baez 2 Durham Court Northport, N. Y. 11768
SHORT FORM ORDER
Present: Hon. EMILY PINES J. S. C. Original Motion Date: 5-16-13
Motion Submit Date: 5-22-14
Motion Sequence No.: 001-MotD
[ ] FINAL [ x ] NON FINAL
Attorney for Plaintiff
FRENKEL, LAMBERT,
WEISS, WEISMAN & GORDON, LLP
53 Gibson Street
Bay Shore, N. Y. 11706
Defendant Pro Se
John Baez
2 Durham Court
Northport, N. Y. 11768
Denise Baez
2 Durham Court
Northport, N. Y. 11768
Upon the following papers numbered 1 to 13 read on this motion for summary judgment; Notice of Motion/Order to Show Cause and supporting papers 1 - 13; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers ___; Replying Affidavits and supporting papers ___; Other ___; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this unopposed motion by the plaintiff for, inter alia, an order awarding summary judgment in its favor against the defendants Denise Baez and John Baez, striking their answer and dismissing the affirmative defenses set forth therein, fixing the defaults of the non-answering defendants, appointing a referee and amending the caption is determined as set forth below; and it is
ORDERED that the plaintiff is directed to file proof of filing of an additional or a successive notice of pendency with the proposed judgment of foreclosure (see, CPLR 6513; 6516[a]; Aames Funding Corp. v Houston, 57 AD3d 808, 872 NYS2d 134 [2d Dept 2008]; EMC Mtge. Corp. v Stewart, 2 AD3d 772, 769 NYS2d 408 [2d Dept 2003]; Horowitz v Griggs, 2 AD3d 404, 767 NYS2d 860 [2d Dept 2003]); and it is
ORDERED that the plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of this Court; and it is further
ORDERED that the plaintiff is directed to serve a copy of this Order with notice of entry upon all parties who have appeared herein and not waived further notice pursuant to CPLR 2103(b)(1), (2) or (3) within thirty (30) days of the date herein, and to promptly file the affidavits of service with the Clerk of the Court.
This is an action to foreclose a mortgage on real property known as Durham Court, Northport, New York 11768. On May 24, 2003, the defendants Denise Baez and John Baez (the defendant mortgagors) executed a fixed/adjustable-rate note in favor of E-Loans, Inc. (the lender) in the principal sum of $322,700.00. To secure said note, the defendant mortgagors gave the lender a mortgage also dated May 24, 2003 on the property. The mortgage indicates that Mortgage Electronic Registration Systems, Inc. (MERS) was acting solely as a nominee for the lender and its successors and assigns and that, for the purposes of recording the mortgage, MERS was the mortgagee of record. By way of two endorsements, the note was allegedly transferred to BAC Home Loans Servicing, LP formerly known as Countrywide Home Loans Servicing, LP (the plaintiff) prior to commencement, memorialized by an assignment of the mortgage executed on June 16, 2010. The assignment was subsequently duly recorded in the Suffolk County Clerk's Office.
The defendant mortgagors allegedly defaulted on the note and mortgage by failing to make the monthly payment of principal and interest due on or about September 1, 2009, and each month thereafter. After the defendant mortgagors allegedly failed to cure their default, the plaintiff commenced the instant action by the filing of a lis pendens, summons and verified complaint on June 23, 2010. Parenthetically, the court notes that the lis pendens has now expired.
Issue was joined by the interposition of the defendant mortgagors' joint answer dated July 13, 2010. By their answer, the defendant mortgagors deny some allegations of the complaint, and admit other allegations therein. The defendant mortgagors also assert two affirmative defenses alleging, among ether things, the plaintiff's failure to: comply with the requirements of RPAPL § 1304 with respect to the 90-day pre-foreclosure notice; and provide notice of default prior to commencement. The defendants Discover Bank and LHR, Inc. have appeared herein, but not answered. The remaining defendants have neither answered nor appeared.
The plaintiff now moves for, inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its favor and against the defendant mortgagors, striking their answer and dismissing the affirmative defenses set forth therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL § 1321 appointing a referee to: (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) amending the caption. No opposition has been filed in response to this motion.
A plaintiff in a mortgage foreclosure action establishes a prima facie case for summary judgment by submission of the mortgage, the note, bond or obligation, and evidence of default (see, Valley Natl. Bank v Deutsch, 88 AD3d 691, 930 NYS2d 477 [2d Dept 2011]; Wells Fargo Bank v Das Karla, 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]; Washington Mut. Bank, FA. v O'Connor, 63 AD3d 832, 880 NYS2d 696 [2d Dept 2009]). The burden then shifts to the defendant to demonstrate "the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff ( Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882, 883, 895 NYS2d 199 [2d Dept 2010], quoting Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467, 644 NYS2d 345 [2d Dept 1997]).
By its submissions, the plaintiff established its prima facie entitlement to summary judgment on the complaint (see, CPLR 3212; RPAPL § 1321; Wachovia Bank, N.A. v Carcano, 106 AD3d 724, 965 NYS2d 516 [2d Dept 2013]; U.S. Bank, N.A. v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; Capital One, N.A. v Knollwood Props. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]). In the instant case, the plaintiff produced the note, the mortgage and evidence of nonpayment (see Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, 655 NYS2d 631 [2d Dept 1997]; First Trust Natl. Assn. v Meisels, 234 AD2d414, 651 NYS2d 121 [2d Dept 1996]). Furthermore, the plaintiff submitted proof of compliance with the notice requirements of RPAPL § 1304 as well as the notice provisions of the mortgage prior to commencement (see, Wachovia Bank, N.A. v Carcano, 106 AD3d 724, supra; cf., Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 923 NYS2d 609 [2d Dept 2011]). Thus, the plaintiff demonstrated its prima facie burden as to the merits of this foreclosure action.
The plaintiff also submitted sufficient proof to establish, prima facie, that the affirmative defenses set forth in the defendant mortgagors' answer are subject to dismissal due to their unmeritorious nature (see, Becher v Feller, 64 AD3d 672, 884 NYS2d 83 [2d Dept 2009]; Wells Fargo Bank Minn., N.A. v Perez , 41 AD3d 590, 837 NYS2d 877 [2d Dept 2007]; Coppav Fabozzi, 5 AD3d 718, 773 NYS2d 604 [2d Dept 2004] [unsupported affirmative defenses are lacking in merit]; see also, Wachovia Bank, N.A. v Carcano, 106 AD3d 724, supra [compliance with the pre-foreclosure notice requirement of RPAPL § 1304 satisfies the "30-day notice" requirement specified in the mortgage]; Grogg v South Rd. Assoc., L.P., 74 AD3d 1021, 907 NYS2d 22 [2d Dept 2010] [the mere denial of receipt of the notice of default is insufficient to rebut the presumption of delivery]). As the plaintiff duly demonstrated its entitlement to judgment as a matter of law, the burden of proof shifted to the defendant mortgagors (see, HSBC Bank USA v Merrill, 37 AD3d 899, 830 NYS2d 598 [3d Dept 2007]). Accordingly, it was incumbent upon the defendant mortgagors to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see, Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793, 946 NYS2d 611 [2d Dept 2012]; Washington Mut. Bank v Valencia, 92 AD3d 774, 939 NYS2d 73 [2d Dept 2012]).
Self-serving and conclusory allegations do not raise issues of fact, and do not require the plaintiff to respor d to alleged affirmative defenses which are based on such allegations (see, Charter One Bank, FSB v Leone, 45 AD3d 958, 845 NYS2d 513 [2d Dept 2007]; Rosen Auto Leasing, Inc. v Jacobs, 9 AD3d 798, 780 NYS2d 438 [3d Dept 2004]). In instances where a defendant fails to oppose a motion for summary judgment, the facts, as alleged in the moving papers, may be deemed admitted and there is, in effect, a concession that no question of fact exists (see, Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539, 369 NYS2d 667 [1975]; see also, Madeline D'Anthony Enters., Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). Additionally, "uncontradicted facts are deemed admitted" ( Tortorello v Carlin, 260 AD2d 201, 206, 688 NYS2d 64 [1st Dept 1999] [internal quotation marks and citations omitted]).
The defendant mortgagors' answer is insufficient, as a matter of law, to defeat the plaintiff's unopposed motion (see, Flagstar Bank v Bellafiore, 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra). In this case, the affirmative defenses asserted by the defendant mortgagors are factually unsupported and without apparent merit (see, Becher v Filler, 64 AD3d 672, supra). In any event, the failure by the defendant mortgagors to raise and/or assert their pleaded defenses in opposition to the plaintiff's motion warrants the dismissal of the same as abandoned under the case authorities cited above (see, Kuehne & Nagel v Baiden, 36 NY2d 539, supra; see also, Madeline D'Anthony Enters., Inc. v Sokolowsky, 101 AD3d 606, supra).
Under these circumstances, the Court finds that the defendant mortgagors failed to rebut the plaintiff's prima facie showing of its entitlement to summary judgment requested by it (see, Flagstar Bank v Bellafiore, 94 AD3d 1044, supra; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra; Rossrock Fund II, L.P. v Commack Inv. Group, Inc., 78 AD3d 920, 912 NYS2d 71 [2d Dept 2010]; see generally, Hermitage Ins. Co. v Trance Nite Club, Inc., 40 AD3d 1032, 834 NYS2d 870 [2d Dept 2007]). The plaintiff, therefore, is awarded summary judgment in its favor against the defendant mortgagors (see, Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, supra; see generally, Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Accordingly, the defendant mortgagors' answer is stricken, and affirmative defenses set forth therein are dismissed.
The branch of the instant motion wherein the plaintiff seeks an order pursuant to CPLR 1024 amending the caption by excising the fictitious named defendant, John Doe, is granted (see, PHH Mtge. Corp. v Davis, 111 AD3d 1110, 975 NYS2d 480 [3d Dept 2013]; Flagstar Bank v Bellafiore, 94 AD3d 1044, supra; Neighborhood Hous. Servs. of N. Y. City, Inc. v Meltzer, 61 AD3d 872, 889 NYS2d 627 [2d Dept 2009]). The branch of the motion wherein the plaintiff seeks an order pursuant to CPLR 1021 substituting Bank of America, N.A. for the plaintiff is also granted (see, CPLR 1018; 3025[c]; Citibank, N.A. v Van Brunt Props., LLC, 95 AD3d 1158, 945 NYS2d 330 [2d Dept 2012]; see also, IndyMac Bank F.S.B. v Thompson, 99 AD3d 669, 952 NYS2d 86 [2d Dept 2012]; Greenpoint Mtge. Corp. v Lamberti, 94 AD3d 815, 941 NYS2d 864 [2d Dept 2012]; Maspeth Fed. Sav. & Loan Assn. v Simon-Erdan, 67 AD3d 750, 888 NYS2d 599 [2d Dept 2009]). By its submissions, the plaintiff established the basis for the above-noted relief. All future proceedings shall be captioned accordingly.
By its submissions, the plaintiff demonstrated that certain errors contained in the complaint were inadvertent, and that the substantial right of any party to this action has not been prejudiced (see, CPLR 2001: Household Fin. Realty Corp. v Emanuel, 2 AD3d 192, 769 NYS2d 511 [1st Dept 2003]; Rennert Diana & Co. v Kin Chevrolet, Inc., 137 AD2d 589, 524 NYS2d 481 [2d Dept 1988], see also, Serena Constr. Corp. v Valley Drywall Serv., 45 AD2d 896, 357 NYS2d 214 [3d Dept 1974]). Accordingly, pursuant to CPLR 2001 and 3025(c), paragraph "FIRST" of the complaint is amended nunc pro tunc to June 23, 2010 to state, in relevant part, that "the plaintiff is the holder of the rote and mortgage being foreclosed." Furthermore, "Schedule C" of the complaint is amended nunc pro tunc to June 23, 2010 to reflect that the address of the "John Baez for the judgment docketed on April 13, 2006 is 7 Sheppard Court, Brentwood, NY 11717."
By its moving papers, the plaintiff further established the default in answering on the part of the defendants Chase Bank USA, N.A., Discover Bank, Household Finance Corporation, III, HSBC Bank Nevada, N.A., IndyMac Federal Bank, F.S.B. formerly known as IndyMac Bank, F.S.B., LHR, Inc., LVNV Funding, LLC and People of the State of New York (see, RPAPL § 1321; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 914 NYS2d 647 [2d Dept 2011]). Accordingly, the defaults of the above-noted defendants are fixed and determined. Since the plaintiff has been awarded summary judgment against the defendant mortgagors, and has established the default in answering by all of the non-answering defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see, RPAPL § 1321; Ocwen Fed. Bank FSB v Miller, 18 AD3d 527, 794 NYS2d 650 [2d Dept 2005]; Vermont Fed Bank v Chase, 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; Bank of E. Asia v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1954]).
Accordingly, this motion for, inter alia, summary judgment and an order of reference is determined as se: forth above. The proposed long form order appointing a referee to compute pursuant to RPAPL § 1321, as modified by the Court, has been signed concurrently herewith. Dated: 7-7-14
Riverhead, New York
/s/_________
Hon. EMILY PINES
J. S. C.