Opinion
Index No.: 39003/2011
10-15-2013
Bank of America, N.A., Plaintiff, v. Tania Guzman, Jose Argueta, Bank of America, NA, New York State Affordable Housing Corporation, LR Credit 18 LLC, New York State Commissioner of Taxation and Finance, Bethpage Federal Credit Union, People of the State of New York, "John Doe #1" to "John Doe #10," the last ten names being fictitious the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants.
Attorney for Plaintiff: McCabe, Weisberg & Conway, P.C. Defendants Pro Se: Tania Guzman Jose Argueta
Short Form Order
PRESENT:
WILLIAM B. REBOLINI
Justice
Motion Sequence No.: 001; MG
Motion Date: 1/10/13
Submitted: 7/24/13
Attorney for Plaintiff:
McCabe, Weisberg & Conway, P.C.
Defendants Pro Se:
Tania Guzman
Jose Argueta
Clerk of the Court
Upon the following papers numbered 1 to 14 read upon this motion for summary judgment: Notice of Motion and supporting papers. 1 - 14; it is
ORDERED that this unopposed motion by the plaintiff for. inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its favor against the defendants Tania Guzman and Jose Argueta, and striking their joint answer and affirmative defenses; (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, is granted: and it is further
ORDERED that the plaintiff shall submit with proposed judgment of foreclosure an affidavit or affirmation of non-military status of the defendants Tania Guzman and Jose Argueta. pursuant to 50 USC 521 et seq. (see, Central Mtge. Co. v Acevedo, 34 Misc3d 213. 934 NYS2d 285 [Sup Ct, Kings County 2011]); 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 file the affidavits of service with the Clerk of the Court.
This is an action to foreclose a mortgage on residential real property known as 408 Nostrand Avenue, Central Islip. New York 11722. On May 1, 2006, Tania Guzman and Jose Argueta (the defendant mortgagors) executed a fixed-rate note in favor of Bank of America, N.A. (the plaintiff) in the principal sum of $352,600.00. To secure said note, the defendant mortgagors gave the plaintiff a mortgage also dated May 1, 2006 on the property.
The defendant mortgagors allegedly defaulted in making their monthly payment of principal and interest due on March 1, 2010. 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 December 23, 2011. Issue was joined by the interposition of the defendant mortgagors' joint answer dated January 11, 2012. By their answer, the defendant mortgagors generally deny some of the allegations in the complaint, admit other allegations, including, inter alia, their execution of the note and mortgage, and assert two affirmative defenses. As a first affirmative defense, the defendant mortgagors allege that they were unable to timely submit the documentation required for a loan modification. As a second affirmative defense, the defendant mortgagors allege that they submitted all the documentation required for a loan review, and that they have also offered payments which the plaintiff has rejected The remaining defendants have neither answered nor appeared.
In compliance with CPLR 3408. a series of settlement conferences were held in this Court's specialized mortgage foreclosure part on April 24, July 10, August 22 and October 16, 2012. At the last conference, this action was dismissed from the conference program as the defendant mortgagors did not appear or otherwise participate. Accordingly, the conference requirement imposed upon the Court by CPLR 3408 and/or the Laws of 2008. Ch. 472 § 3-a as amended by Laws of 2009 Ch. 507 $ 10 has been satisfied. No further conference is required under any statute, law or rule.
The plaintiff now moves for. inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its favor against the defendant mortgagors, and striking their answer and affirmative defenses: (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 papers have been filed herein.
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 Deutsche, 88 AD 3d 691, 930 NYS2d 477 [2d Dept 2011]; Wells Fargo Bank v Karla, 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]; Wash. Mat. Bank, F.A. v O'Connor, 63 AD3d 832, 880 N YS2d 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 tide 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]).
By its submissions, the plaintiff established its prima facie entitlement to summary judgment on the complaint (see, CPLR 3212; RPAPL §1321; U.S. Bank Natl. Assn. 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]; HSBC Bank USA, N.A. v Schwartz, 88 AD3d 961, 931 NYS2d 528 [2d Dept 2011]). In the instant case, the plaintiff produced the note and the mortgage executed by the defendant mortgagors as well as evidence of nonpayment (see, Fed. Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, 655 NYS2d 631 [2d Dept 1997]; First Trust Natl. Assn. v Meisels, 234 AD2d 414. 651 NYS2d 121 [2d Dept 1996]). The plaintiff also submitted, inter alia, an affidavit from an officer of the plaintiff, whereby it is alleged, inter alia, that the plaintiff is the holder and is in possession of the note and mortgage (see, U.S. Bank, N.A. v Collynwre, 68 AD3d 752. 890 NYS2d 578 [2d Dept 20091). Additionally, the plaintiff 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., Natl. Assn. v Perez, 41 AD3d 590, 837 NYS2d 877 [2d Dept 2007]; Coppa v Fahozzi, 5 AD3d 718, 773 NYS2d 604 [2d Dept 2004] [unsupported affirmative defenses are lacking in merit]; see also, Wells Fargo Bank, N.A. v Van Dyke, 101 AD3d 638, 958 NYS2d 331 [1st Dept 2012]; EMC Mtge, Corp. v Stewart, 2 AD3d 772, 769 NYS2d 408 [2d Dept 2003]; United Cos. Lending Corp. v Ilingos, 283 AD2d 764, 724 N YS2d 134 [3d Dept 2001]; First Fed. Sav. Bank v Midura, 264 AD2d 407, 694 NYS2d 121 [2d Dept 199] [foreclosing plaintiff has no obligation to modify loan]).
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]; Wash. Mut. Bank v Valencia, 92 AD3d 774, 939 NYS2d 73 [2d Dept 2012]; Grogg v South Rd. Assocs., LP, 74 AD3d 1021, 907 NYS2d 22 [2d Dept 2010]).
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, 915 NYS2d 591 [2d Dept 2010]). Further, the affirmative defenses asserted by the defendant mortgagors are factually unsupported and without apparent merit (see, Wells Fargo Bank, N .A. v Van Dyke, 101 AD3d 638, supra; Neighborhood Hons. Servs. N.Y. City, Inc. v Meltzer, 67 AD3d 872, 889 NYS2d 627 [2d Dept 2009]; JP Morgan Chase Bank, N .A. v Ilardo, 36 Misc3d 359, 940 NYS2d 829 [Sup Ct. Suffolk County 2012]). In any event, 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 generally, 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, 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, Rossrock Fund II, L.P. v Commack Inv. Group, Inc., 78 AD3d 920, 912 NYS2d 71 [2d Dept 2010]; see generally. Hermitage Ins. Co. Trance Nite Club, Inc., 40 AD3d 1032, 834 NYS2d 870 [2d Dept 2007]). The plaintiff, therefore, is awarded summary judgment against the defendant mortgagors (see, Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra; Fed. 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]).
The branch of the instant motion wherein the plaintiff seeks an order amending the caption by substituting Nancy Guzman as a party defendant for John Doe #1, and excising the fictitious defendants sued herein as John Doc #2 through #10, is granted pursuant to CPLR 1024. By its submissions, the plaintiff established the basis for this relief (see, Flagstar Bank v Bellafiore, 94 AD3d 1044, supra; Neighborhood Hons. Servs. N.Y. City, Inc. v Meltzer, 67 AD3d 872, supra). All future proceedings shall be captioned accordingly.
By its moving papers, the plaintiff further established the default in answering on the part of the defendants. New York Slate Affordable Housing Corporation. LR Credit 18, LLC. New York State Commissioner of Taxation and Finance. Bethpage Federal Credit Union. People of the State of New York, and the newly substituted defendant, Nancy Guzman, as these defendants never interposed answers to the complaint (see, RPAPL § 1321; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 914 NYS2d 647 [2d Dept 2011]). Accordingly, the defaults of all such non-answering 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 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; Omen Fed. Bank FSB v Miller, 18 AD3d 527, 794 N YS2d 650 [2d Dept 2005]; Vt. Fed. Bank v Chase, 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; Bank of E. Asia, Ltd. v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]).
Accordingly, this motion by the plaintiff is granted. The proposed order appointing a referee to compute pursuant to RPAPL § 1321 has been signed concurrently herewith.
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HON. WILLIAM B. REBOLINI, J.S.C.