Opinion
06-29-2016
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff, v. Theresa KARASTAMATIS a/k/a Theresa Pichler, Angelo Karastamatis, Chase Bank USA NA, “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.
Frenkel, Lambert, Weiss et al., Bay Shore, Attys. for Plaintiff. Young Law Group, PLLC, Bohemia, Attys. for Defendants Karastamatis.
Frenkel, Lambert, Weiss et al., Bay Shore, Attys. for Plaintiff.
Young Law Group, PLLC, Bohemia, Attys. for Defendants Karastamatis.
THOMAS F. WHELAN, J. It is,
ORDERED that this motion (# 001) by the plaintiff for accelerated judgments on its complaint, amendment of the complaint to reflect that the sole obligor under the note is the first named defendant, Theresa Karastamatis, a substitution of the plaintiff by its loan servicer/ assignee, the deletion of the unknown defendants and caption amendments to reflect these party changes and the issuance of an order of reference, is considered under CPLR 3212, 3215, 3025 1018, 1003 and is granted. The moving papers sufficiently established, prima facie, the plaintiff's entitlement to accelerated judgments on its First cause of action for foreclosure and sale relief and a dismissal of the affirmative defenses asserted in the answer served by the Karastmatis defendants due to their lack of merit (see CPLR 3212 ; Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ; Wells Fargo Bank v. Charlaff, 134 A.D.3d 1099, 24 N.Y.S.3d 317 [2d Dept.2016] ; Wells Fargo Bank, N.A. v. Erobobo, 127 A.D.3d 1176, 9 N.Y.S.2d 312 [2d Dept.2015] ; Wells Fargo Bank, NA v. Parker, 125 A.D.3d 848, 5 N.Y.S.3d 130 [2d Dept.2015] ). In addition, the plaintiff sufficiently established its entitlement to summary and default judgments on its Second cause of action for reformation of the description of the mortgaged premises set forth in the recorded mortgage indenture to add the legal description, to which, the answering defendants asserted no challenges (see Beltway Capital, LLC v. Gutierre, 140 A.D.3d 998, 35 N.Y.S.3d 164 [2d Dept.2016] ; Bank of New York v. Stein, 130 A.D.3d 552, 13 N.Y.S.3d 458 [2d Dept.2015] ; Wells Fargo Bank, NA v. Ambrosov, 120 A.D.3d 1225, 993 N.Y.S.2d 322 [2d Dept.2014] ).
It was thus incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of the affirmative defenses asserted in his answer or otherwise available to them (see Flagstar Bank v. Bellafiore, 94 A.D.3d 1044, 943 N.Y.S.2d 551 [2d Dept.2012] ; Jessabell Realty Corp.
v. Gonzales, 117 A.D.3d 908, 985 N.Y.S.2d 897 [2d Dept.2014] Grogg Assocs. v. South Rd. Assocs., 74 A.D.3d 1021 907 N.Y.S.2d 22 [2d Dept.2010] ; Wells Fargo Bank v. Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681 [2d Dept.2010] ; Washington Mut. Bank v. O'Connor, 63 A.D.3d 832, 880 N.Y.S.2d 696 [2d Dept.2009] ; J.P. Morgan Chase Bank, NA v. Agnello, 62 A.D.3d 662, 878 N.Y.S.2d 397 [2d Dept.2009] ; Aames Funding Corp. v. Houston, 44 A.D.3d 692, 843 N.Y.S.2d 660 [2d Dept.2007] ). Notably, self-serving and conclusory allegations do not raise issues of fact and do not require plaintiff to respond to alleged affirmative defenses which are based on such allegations (see Charter One Bank, FSB v. Leone, 45 A.D.3d 958, 845 N.Y.S.2d 513 [3d Dept.2007] ; Rosen Auto Leasing, Inc. v. Jacobs, 9 A.D.3d 798, 780 N.Y.S.2d 438 [3d Dept.2004] ). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movants' papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667, 330 N.E.2d 624 [1975] ; see also Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept.2012] ; Argent Mtge. Co., LLC v. Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2d Dept.2010] ). In addition, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus subject to dismissal (see New York Commercial Bank v. J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 969 N.Y.S.2d 796 [2d Dept.2013] ; Starkman v. City of Long Beach, 106 A.D.3d 1076, 965 N.Y.S.2d 609 [2d Dept.2013] ).
Here, the opposing papers submitted by counsel for the answering defendants assert only one objection to the plaintiff's motion, namely, that certain federal regulations provide a basis for a denial of the relief requested (see generally, Federal Consumer Financial Protection Bureau's (“CFPB”) Regulation “Title X”). All of the pleaded affirmative defenses set forth in the answer have thus been waived and abandoned under the case authorities cited directly above.
With respect to the defendants' assertion of the federally promulgated Regulation X as a ground for denial of this motion, the court finds such assertion to be without merit. While regulatory provisions, particularly those referred to as Regulation X, obligate some mortgage foreclosure plaintiffs to conform to review standards and to seek stays or adjournments of the prosecution of their foreclosure claims in impending or pending action in state courts or elsewhere, they do not provide defendant mortgagors with any viable defense to a New York mortgage foreclosure action or any right to obtain a stay of proceedings in such actions or to obtain a vacatur of or orders or judgments issued in such actions. Instead, the regulations merely provide a federal monetary remedy in favor of the mortgagor borrower against a bank, note holder or other entity subject to such federal regulations, upon proof of their violation of one or more of the regulations (see of 12 C.F.R. § 1024.41 ; RESPA at 12 U.S.C. § 2605 [f] ).
That a federal regulation may not be employed as a defense to any facet of a New York mortgage foreclosure action is consistent with long standing principles of the law of the property which govern in rem actions, including, that claims interposed in such actions are governed by the law of the situs of the property at issue (see Mallory Associates, Inc. v. Barving Realty Co., Inc., 300 N.Y. 297, 90 N.E.2d 468 [1949] ). While a mortgage foreclosure action is recognized as being equitable in nature, it differs in various ways from other equity actions and for purposes here, in one very significant aspect. The difference was explained as follows by the Court of Appeals in the case of Jo Ann Homes v. Dworetz, 25 N.Y.2d 112, 302 N.Y.S.2d 799, 250 N.E.2d 214 (1969), in which Chief Judge Burke stated as follows:
“Concededly, a foreclosure action is a proceeding in a court of equity which is regulated by statute (internal citations omitted). Nevertheless, it is well settled that such a proceeding is unlike other equity actions in several ways. Thus, while equity acts only in personam, an action for foreclosure is in the nature of a proceeding in rem to appropriate the land (Reichert v. Stilwell, 172 N.Y. 83, 89, 64 N.E. 790, 792 [1902] ).”
A New York mortgage foreclosure action is thus one in rem to collect the contractual mortgage debt, not from the mortgagor directly, but from the land the borrower posted as security for the debt, by enforcing the mortgage lien that attached thereto (see id. at 88, 64 N.E. 790 ). The equitable attributes of such action do not remove it from its governance by the substantive and procedural law of New York, which alone has situs jurisdiction over the mortgaged premises. Regulations promulgated by the federal government, which is without situs jurisdiction over the premises, like those relied upon by the defendants here, target and control only the conduct of banks, note holders and others having the right to foreclose who are subject to federally promulgated regulations due to the origin or nature of their business or their participation in federal programs. Accordingly, the provisions of Regulation X have no effect upon this court or its application of New York law to the matters at issue in this foreclosure action.
The defendants' singularly premised challenge to the plaintiff's entitlement to an award of summary judgment on its complaint against the answering defendants and the other incidental relief requested in the moving papers is thus without merit. Those portions of the plaintiff's motion wherein it seeks summary judgment are granted. The award of summary judgment on the Second cause of action for a reformation of the mortgage indenture so as to include the legal description of the property warrants the issuance of the following declaration: That the mortgage indenture is hereby reformed to include the legal description of the mortgaged premises that is set forth in Schedule A of the deed dated December 21, 2007 and in the Second cause of action of the complaint. The judgment of foreclosure and sale, if any be entered herein, shall include an ordered and an adjudicatory paragraph granting the declaratory relief as pleaded by the plaintiff and awarded by the terms of this memo decision and order. The motion for such judgment must include a copy of this order so as to supply the grounds for the inclusion of such relief in the judgment as well as the separate order of reference issued hereon.
Also granted is the plaintiff's request for default judgments against the remaining defendants served with process, the substitution of the plaintiff by its servicer and assignee, the deletion of the unknown defendants with caption amendments to reflect these party changes, and the amendment of the complaint to reflect that only the first named defendant is the obligor under the note.
Proposed Order of Reference, as modified by the court to reflect the terms of this order, has been marked signed.