Opinion
9 CV 5484 (VB)
12-20-2011
BUILDERS BANK, Plaintiff, v. WARBURTON RIVER VIEW CONDO LLC, and JOSE ESPINAL, Defendants.
MEMORANDUM DECISION :
Plaintiff Builders Bank brings this action against defendants, Warburton River View Condo LLC and Jose Espinal, alleging that Warburton defaulted on two mortgage notes, both of which matured on November 5, 2009, and that Espinal guaranteed those notes. Plaintiff seeks: (1) to foreclose upon the lien on the subject collateral, (2) a judgment against Warburton in the amount of $5,708,245.89, and (3) a declaration that Espinal is liable for any deficiency.
For the reasons set forth below, plaintiff's motion for summary judgment (Doc. #32) is GRANTED.
The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332.
BACKGROUND
Plaintiff is the only party that has submitted a brief, a statement of material facts, and supporting exhibits, all of which reflect the following factual background.
Plaintiff is an Illinois banking corporation. Defendant Warburton River View Condo LLC ("Warburton") is a New York Limited Liability Company, and defendant Espinal is Warburton's only member. On May 17 and November 7, 2007, Warburton obtained two mortgages from plaintiff covering properties at 1175, 1179, and 1189 Warburton Avenue, Yonkers, New York. These mortgages were memorialized by two notes pursuant to which Warburton promised to repay plaintiff by November 5, 2009.
The notes provide that the failure to repay plaintiff on time is an "Event of Default." The notes provide further that, in the "Event of Default," plaintiff may declare the full amount of the notes due, plus interest accruing at the "Default Rate" from the date of the "Event of Default" until the date the amount owed is paid.
As of November 5, 2009, Warburton had not paid plaintiff. Moreover, Warburton has failed to make interest payments with respect to the mortgages since May 5, 2009. Therefore, the mortgages have accrued interest at the "Default Rate" since May 5, 2009.
Plaintiff sets forth different amounts due. Plaintiff's 56.1 statement, filed on July 8, 2011, alleges that, as of July 7, 2011, Warburton owed plaintiff a total of $6,521,626.12 - $4,175,000 in principal, $90,666.41 in capitalized expenses, $27,833.33 in note rate interest, and $2,228,126.38 in "Default Rate" interest. Plaintiff's memorandum of law in support of summary judgment, filed the same day, seeks judgment in the amount of $5,708,245.89. --------
DISCUSSION
A motion for summary judgment must be granted if the pleadings, discovery materials before the court, and any affidavits show that there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute regarding a material fact is genuine if there is sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden to demonstrate the absence of any material factual issue genuinely in dispute. Am. Int'l Grp., Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981).
If the non-movant fails to properly address the movant's assertion of material facts, the court may "consider the fact undisputed for purposes of the motion" and "grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." Fed. R. Civ. P. 56(e).
On summary judgment, the court resolves all ambiguities and draws all permissible factual inferences in favor of the nonmoving party. See Patterson v. County of Oneida, 375 F.3d 206, 218 (2d Cir. 2004). If there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party on the issue on which summary judgment is sought, summary judgment is improper. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).
Under New York law, summary judgment in a mortgage foreclosure action is appropriate where the note and mortgage are produced to the Court along with proof that the mortgagor has failed to make payments due under the note. Regency Sav. Bank, F.S.B. v. Merritt Park Lands Assocs., 139 F. Supp. 2d 462, 465 (S.D.N.Y. 2001); FGH Realty Credit Corp. v. VRD Realty Corp., 647 N.Y.S.2d 229, 230 (2d Dep't 1996). Once plaintiff has established its prima facie case by presenting the note, mortgage, and proof of default, the mortgagee has a presumptive right to foreclose, which can only be overcome by an affirmative showing by the mortgagor. Regency Sav. Bank, F.S.B. v. Merritt Park Lands Assocs. 139 F. Supp. 2d at 465-66.
Because defendants have failed to file a statement of material facts addressing plaintiff's statement of material facts, the Court considers the facts alleged by plaintiff undisputed. See Local Civ. R. 56.1(c); Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998). Plaintiff has provided the Court with the notes and mortgages, executed by Warburton in favor of plaintiff, and the underlying loan documents. It is undisputed that Warburton failed to tender the required interest payments due on May 5, 2009. Plaintiff was therefore entitled to accelerate and demand repayment of the full amount due under the notes, plus interest. As of November 5, 2009, Warburton had not paid plaintiff. Based on the undisputed facts, the Court finds that plaintiff has satisfied the requirements for a prima facie case of foreclosure.
Plaintiff is also entitled to attorney's fees under the terms of the mortgage. Fed. Home Loan Mortg. Corp. v. Perez, 1992 WL 350595, at *2 (E.D.N.Y. Nov. 23, 1992) ("A plaintiff may also recover its attorneys fees incurred in a foreclosure action if the parties' agreement has provided for them."); Kenneth Pregno Agency, Ltd. v. Letterese, 492 N.Y.S.2d 824, 825-26 (2d Dep't 1985). These fees are in addition to the total amount due and owing to plaintiff under the mortgages, notes, and loan documents. Upon foreclosure and sale of the property at issue in this action, plaintiff shall provide an updated affidavit in support of attorney's fees.
CONCLUSION
Based on the foregoing, plaintiff's motion for summary judgment is GRANTED.
Plaintiff may foreclose on the property described in the mortgages. If there is no deficiency, then this case will be closed. The Court will retain jurisdiction over this matter in the event there is a deficiency after the sale of the property. Plaintiff is directed to submit a proposed judgment and an order of foreclosure for the Court's approval by no later than January 6, 2012.
The Clerk is instructed to terminate the pending motion. (Doc. #32). Dated: December 20, 2011
White Plains, NY
SO ORDERED:
/s/_________
Vincent L. Briccetti
United States District Judge