Opinion
Index No. 850209/2022 MOTION SsEQ. No. 001
09-09-2024
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff, v. NACIYE KOCAK, THE BOARD OF MANAGERS OF 432 PARK CONDOMINIUM, JOHN DOE AND JANE DOE SAID NAMES BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS OF PREMISES BEING FORECLOSED HEREIN Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. FRANCIS A. KAHN, III Justice
The following e-filed documents, listed by NYSCEF document number (Motion 001) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 61, 62, 63, 64, 65, 66, 67, 68, 69 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motion is determined as follows:
In this action Plaintiff seeks to foreclose on a mortgage encumbering residential real property located at 432 Park Avenue, Unit 81 A, New York, New York. The mortgage, dated September 14, 2016, was given by Defendant Naciye Kocak ("Kocak") to Plaintiff JPMorgan Chase Bank, NA. The mortgage secures a loan with an original principal amount of $11,412.500.00 and is evidenced by a note the same date as the mortgage. Plaintiff commenced this action alleging inter alia that Defendant Kocak defaulted in repayment of the loan on or about November 1, 2021. Kocak answered and pled sixteen affirmative defenses, including lack of standing, failure to comply with RPAPL §§1304 and 1306 as well as failure to serve a contractual pre-foreclosure notice. Now, Plaintiff moves for summary judgment against Kocak, to strike the answer and affirmative defenses, a default judgment against the non-appearing Defendants, an order of reference and to amend the caption. Kocak opposes the motion.
In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to judgment as a matter of law though proof of the mortgage, the note, and evidence of Defendants' default in repayment (see U.S. Bank, N.A. v James, 180 A.D.3d 594 [1st Dept 2020]; Bank of NY v Knowles, 151 A.D.3d 596 [1st Dept 2017]; Fortress Credit Corp, v Hudson Yards, LLC, 78 A.D.3d 577 [1st Dept 2010]). Also, based on the affirmative defenses pled. Plaintiff was required to demonstrate, prima facie, its standing (see eg Wells Fargo Bank, N.A. v Tricario, 180 A.D.3d 848 [2nd Dept 2020]), its strict compliance with RPAPL §§1304 and 1306 (see 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]) as well as its substantial compliance with the requisites under paragraph 22 of the mortgage (see eg Wells Fargo Bank, N.A. v McKenzie, 186 A.D.3d 1582, 1584 [2d Dept 2020]).
Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 A.D.3d 780 [1st Dept 2019]). A plaintiff may rely on evidence from persons with personal knowledge of the facts, documents in admissible form and/or persons with knowledge derived from produced admissible records (see eg U.S. Bank N.A. v Moulton, 179 A.D.3d 734, 738 [2d Dept 2020]). No particular set of business records must be proffered, as long as the admissibility requirements of CPLR 4518[a] are fulfilled and the records evince the facts for which they are relied upon (see eg Citigroup v Kopelowitz, XAI A.D.3d 1014, 1015 [2d Dept 2017]).
Plaintiffs motion was supported by an affidavit from Gary Brunton ("Brunton"), a Vice President-Document Execution for Plaintiff. Clemens avers that Plaintiff is the servicer of the loan, that his submission was based upon a review of Plaintiffs records and knowledge of its record keeping practices. Brunton's affidavit laid a proper foundation for the admission of the records of Plaintiff into evidence under CPLR §4518 by sufficiently showing that the records Plaintiff relied upon "reflect[ed] a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business", "that the record [was] made pursuant to established procedures for the routine, habitual, systematic making of such a record" and "that the record [was] made at or about the time of the event being recorded" (Bank of N.Y. Mellon v Gordon, 171 A.D.3d 197, 204 [2d Dept 2019]; see also Bank of Am v Brannon, 156 A.D.3d 1 [1st Dept 2017]). Further, annexed to the motion were all the records referenced by Brunton (cf. Deutsche Bank Natl. Trust Co. v Kirschenbaum, 187 A.D.3d 569 [1st Dept 2020]).
As to the note and mortgage, these documents were referenced by Brunton and annexed to his affidavit (cf. 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Hous. Dev. Fund Corp., 218 A.D.3d 417 [1st Dept 2023]). As such, proof of the loan documents was established in the first instance. As to Defendants' default, it "is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form" (Deutsche Bank Natl. Trust Co. v McGann, 183 A.D.3d 700, 702 [2d Dept 2020]). Brunton's review of the attached records evidenced mortgagor's default in repayment under the note (see eg ING Real Estate Fin. (USA) LLC v Park Ave. Hotel Acquisition, LLC, 89 A.D.3d 506 [1st Dept 2011]; see also Bank of NY v Knowles, supra; Fortress Credit Corp, v Hudson Yards, LLC, supra).
As to standing in a foreclosure action, it 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 that contains an indorsement in blank or bears a special indorsement payable to the order of the plaintiff either on its face or by allonge, and [3] assignment of the note to Plaintiff prior to commencement of the action (see eg Wells Fargo Bank, N.A. v Tricario, 180 A.D.3d 848 [2d Dept 2020]; Wells Fargo Bank, NA v Ostiguy, 127 A.D.3d 1375 [3d Dept 2015]). Here, since Plaintiff was lender when the note and mortgage were given, it was in direct privity with the mortgagor when the action was commenced and, therefore, unquestionably had standing (see generally Wilmington Sav. Fund Socy., FSB v Matamoro, 200 A.D.3d 79, 90-91 [2d Dept 2021]).
Plaintiff was also required to proffer "sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304" (Aurora Loan Servs., LLC v Weisblum, 85 A.D.3d 95, 106 [2d Dept 2011]). As to the contractual pre-foreclosure notice, paragraph 22 of the mortgage, a ubiquitous provision in residential mortgages, provides that prior to acceleration of the note, the lender must send a notice containing the information specified in paragraph 22[b][ 1 ] - [6] in the manner described in paragraph 15 of the mortgage. That section provides that all notices must be in writing and "is considered given to [Mortgagor] when mailed by first class mail or when actually delivered to my notice address if sent by other means . . . The notice address is the address of the Property unless I give notice to Lender of a different address".
While RPAPL §1304 does not specify the proof necessary to demonstrate compliance therewith, the Court of Appeals has "has long recognized a party can establish that a notice or other document was sent through evidence of actual mailing ... or ... by proof of a sender's routine business practice with respect to the creation, addressing, and mailing of documents of that nature" (Cit Bank N.A. v Schiffman, 36 N.Y.3d 550, 556 [2020] [internal citations omitted]). Proof of actual mailing may be shown with an affidavit of mailing or domestic return receipts with attendant signatures (see eg U.S. Bank v Zientek, 192 A.D.3d 1189, 1191 [2d Dept 2021]). Evidence of a satisfactory office practice can raise a presumption that the required notice was sent and received by the projected addressee (Cit Bank N.A. v Schiffman, supra). A practice giving rise to the presumption "must be geared so as to ensure the likelihood that [the] notice ... is always properly addressed and mailed" (Nassau Ins. Co. v Murray, 46 N.Y.2d 828, 830 [1978]) and can be demonstrated via an affiant who explains "among other things, how the notices and envelopes were generated, posted and sealed, as well as how the mail was transmitted to the postal service" (Cit Bank N.A. v Schiffman, supra). Proof from a person with "personal knowledge of the practices utilized by the [sender] at the time of the alleged mailing" is sufficient (Preferred Mut. Ins. Co. v Donnelly, 22 N.Y.3d 1169, 1170 [2014]; see also Citibank. N.A. v Conti-Scheurer, 172 A.D.3d 17, 21 [2d Dept 2019][internal quotation marks omitted]). An affidavit from the person who performed the mailing is not necessary (see Bossuk v Steinberg, 58 N.Y.2d 916, 919 [1983]).
Regarding the mailing of these notices, Plaintiff submitted an affidavit from Karla Baxter ("Baxter") a Vice President-Document Execution of Plaintiff. Baxter attested to their personal knowledge of Plaintiff s standard mailing procedure, described the procedure in adequate detail and attached both Plaintiffs records and those from the United States Postal Service (see United States Bank Trust, N.A. v Mehl, 195 A.D.3d 1054 [2d Dept 2021]; Citimortgage, Inc. v Ustick, 188 A.D.3d 793, 794 [2d Dept 2020]). Accordingly, Plaintiff demonstrated prima facie its strict compliance with RPAPL §1304. Likewise, this evidence also demonstrated Plaintiffs substantial compliance with the contractual pre-foreclosure notice required by the mortgage. Compliance with RPAPL §1306 was shown by submitting a copy of a proof of filing statement from the New York State Department of Financial Services (see United States Bank Trust, N.A. v Mehl, supra at 1056) and RPAPL §1303 via the affidavit of Plaintiff s process server (see HSBC Bank USA, N.A. v Ozcan, 154 A.D.3d 822 [2d Dept 2017]).
In opposition, Defendants' claim the motion is defective because a complete copy of the pleadings were not annexed thereto is without merit "as the pleadings were filed electronically and thus were available to the parties and the court" (Studio A Showroom, LLC, v Yoon, 99 A.D.3d 632 [1st Dept 2012]; see also Galpern v Air Chefs, L.L.C., 180 A.D.3d 501 [1st Dept 2020]). The argument that Plaintiff failed to demonstrate all the elements of a cause of action for foreclosure is without merit. The affidavit and proffered business documents were all in admissible form. The argument that the endorsement in blank on the note raises material issues of fact as to possession of same is also unavailing. "Attachment of the note to the complaint was sufficient to establish possession" (U.S. Bank N.A. v Russell, 186 A.D.3d 1181 [1st Dept 2020]). Under the circumstances "[t]here is simply no requirement that an entity. . . must establish how it came into possession of that instrument" (JPMorgan Chase Bank, NA v Weinberger, 142 A.D.3d 643, 645 [2d Dept 2016]). Plaintiff was not obliged to produce the original note and mortgage to establish its prima facie case in this context (see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 365 [2015]; Deutsche BankNall. Trust Co. v Auguste, 185 A.D.3d 657, 659 [2d Dept 2020]).
Regarding reformation of the mortgage, "'[w]here there is no mistake about the agreement and § the only mistake alleged is in the reduction of that agreement to writing, such mistake of the scrivener, or of either party, no matter how it occurred, may be corrected'" (Harris v Uhlendorf 24 N.Y.2d 463, 467' [1969], citing Born v Schrenkeisen, 110 NY 55, 59 [1888]). Therefore, "'[a] party seeking reformation of a contract by reason of mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party's fraudulent misrepresentation'" (see Wells Fargo Bank, N.A. v Zolotnitsky, 195 A.D.3d 659, 661 [2d Dept 2021], citing Yu Han Young v Chiu, 49 A.D.3d 535, 536 [2d Dept 2008]). In support of the motion, Plaintiff demonstrate that the incorrect "metes and bounds" description was merely a "scrivener's error", and its reformation would not prejudice Defendant (see eg Bank of Am., N.A. v Pennicooke, 186 A.D.3d 545 [2d Dept 2020]).
Defendant is correct that "[a] cause of action seeking reformation of an instrument on the ground s of mistake, including an alleged scrivener's error, is governed by the six-year statute of limitations 1 pursuant to CPLR 213 (6), which begins to run on the date the mistake was made" (Lopez v Lopez, 133 A.D.3d 722, 723 [2d Dept 2015]). In this case, the mortgage was executed on September 14, 2016, and r this action was commenced on October 18, 2022, ostensibly 34 days late. However, Defendant overlooks that the running of statute of limitations in this case was tolled for 228 days by operation of "Executive Order 202.8 and seven subsequent executive orders" which were issued in response to the COVID-19 pandemic (Trento 67, LLC v OneWest Bank, N.A., 214 A.D.3d 689 [2d Dept 2024]; Wilmington Trust, NA v Fife, 212 A.D.3d 550 [1st Dept 2023]). As such, Defendant's statute of I limitations affirmative defense to the cause of action to reform the mortgage fails as a matter of law.
In any event, an erroneous "metes and bounds" description attached to the mortgage does not bar foreclosure. The Court of Appeals has noted that "[t]he language in which assessors can put land descriptions, and the actual range and possibility of accurate actual description are quite as infinite as the locations and lines of different land" (Goff v Shultis, 26 N.Y.2d 240, 244 [1970]). The issue to be attended is whether the "the land can be identified with reasonable certainty notwithstanding [any] errors" and "parol evidence may be introduced to identify the property intended and its exact boundaries" (Brookhaven v Dinos, 76 A.D.2d 555, 561 [2d Dept 1980], affd 54 N.Y.2d 911). In this case, the note and mortgage clearly stated the property subject to the encumbrance was "432 Park Avenue, Unit 81 A, New York, NY 10022" and contains the correct block and lot designation.
As to the branch of Plaintiff s motion to dismiss all Defendants' affirmative defenses, CPLR §3211[b] provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit". For example, affirmative defenses that are without factual foundation, conclusory or duplicative cannot stand (see Countrywide Home Loans Servicing, L.P. v Vorobyov, 188 A.D.3d 803, 805 [2d Dept 2020]; Emigrant Bank v Myers, 147 A.D.3d 1027, 1028 [2d Dept 2017]). When evaluating such a motion, a "defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 A.D.3d 741, 743 [2d Dept 2008]).
All the affirmative defenses are entirely conclusory and unsupported by any facts in the answer or by the papers submitted in opposition. As such, these affirmative defenses are nothing more than an unsubstantiated legal conclusion which is insufficiently pled as a matter of law (see Board of Mgrs. of Ruppert Yorkville Towers Condominium v Hayden, 169 A.D.3d 569 [1st Dept 2019]; see also Bosco Credit V Trust Series 2012-1 v. Johnson, 177 A.D.3d 561 [1st Dept 2020]; 170 W. Vil. Assoc, v G & E Realty, Inc., 56 A.D.3d 372 [1st Dept 2008]; see also Becher v Feller, 64 A.D.3d 672 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V& M Opt., Inc., 51 A.D.3d 619 [2d Dept 2008]). Further, to the extent that no specific legal argument was proffered in support of a particular affirmative defense, such defenses were abandoned (see U.S. Bank N.A. v Gonzalez, 172 A.D.3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v Bellaftore, 94 A.D.3d 1044 [2d Dept 2012]; Wells Fargo Bank Minnesota, N.A v Perez, 41 A.D.3d 590 [2d Dept 2007]).
The branch of Plaintiff s motion for a default judgment against the non-appearing parties is granted (see CPLR §3215; SRMOF II 2012-I Trust v Telia, 139 A.D.3d 599, 600 [1st Dept 2016]).
The branch of Plaintiffs motion to amend the caption is granted (see generally CPLR §3025; JP Morgan Chase Bank, N.A. v Laszio, 169 A.D.3d 885, 887 [2d Dept 2019]).
Accordingly, it is
ORDERED that Plaintiff s motion for summary' judgment against the appearing parties and for a default judgment against the non-appearing parties is granted; and it is further
ORDERED that the affirmative defenses pled by all the appearing Defendants are dismissed; and it is further
ORDERED that Clark Whitsett, Esq. 66-05 Woodhaven Blvd., Rego Park, New York 11374 - 718-850-0003 is hereby appointed Referee in accordance with RPAPL § 1321 to compute the amount due to Plaintiff and to examine whether the property identified in the notice of pendency can be sold in parcels; and it is further
ORDERED that in the discretion of the Referee, a hearing may be held, and testimony taken; and it is further
ORDERED that by accepting this appointment the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to §36.2 (c) (''Disqualifications from appointment"), and §36.2 (d) ("Limitations on appointments based upon compensation"), and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further
ORDERED that, pursuant to CPLR 8003(a), and in the discretion of the court, a fee of $350 shall be paid to the Referee for the computation of the amount due and upon the filing of his report and the Referee shall not request or accept additional compensation for the computation unless it has been fixed by the court in accordance with CPLR 8003(b); and it is further
ORDERED that the Referee is prohibited from accepting or retaining any funds for himself or paying funds to himself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further
ORDERED that if the Referee holds a hearing, the Referee may seek additional compensation at the Referee's usual and customary' hourly rate; and it is further
ORDERED that Plaintiff shall forward all necessary documents to the Referee and to Defendants who have appeared in this case within 30 days of the date of this order and shall promptly respond to every inquiry made by the referee (promptly means within two business days); and it is further
ORDERED that if Defendant(s) have objections, they must submit them to the referee within 14 days of the mailing of plaintiff s submissions; and include these objections to the Court if opposing the motion for a judgment of foreclosure and sale; and it is further
ORDERED that failure to submit objections to the referee may be deemed a waiver of objections before the Court on an application for a judgment of foreclosure and sale; and it is further
ORDERED that the mortgage and any necessary loan documents related to such Mortgage be, and the same hereby are, reformed by substituting therein the intended Legal Description of the mortgaged premises, which is the correct description, in place of the mortgage premises description which is erroneous (a copy of the Intended Mortgaged premises is attached); and it is further
ORDERED that the New York County Register for the City of New York note in the original recorded mortgage recorded in the Register for the City of New York on September 27, 2016, in CRFN 2016000338172, that the legal description is hereby reformed; and it is further
ORDERED, that the caption of this action be amended by substituting City of New York Transit Adjudication Bureau sued herein as "John Doe" and "Jane Doe" without prejudice to the proceedings heretofore had herein; and it is further
ORDERED the caption is amended as follows:
SUPREME COURT STATE OF NEW YORK COUNTY OF NEW YORK
JPMorgan Chase Bank, National Association, Plaintiff,
-against-
Naciye Kocak a/k/a N. Kocak; Board of Managers of 432 Park Condominium; City of New York Transit Adjudication Bureau, Defendants.
and it is further, ORDERED that Plaintiff must bring a motion for a judgment of foreclosure and sale within 45 days of receipt of the referee's report; and it is further
ORDERED that if Plaintiff fails to meet these deadlines, then the Court may sna sponte vacate this order and direct Plaintiff to move again for an order of reference and the Court may sua sponte toll interest depending on whether the delays are due to Plaintiffs failure to move this litigation forward; and it further
ORDERED that counsel for Plaintiff shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being removed pursuant hereto; and it is further
ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address (www.nycourts.gov/supctmanh)]; and it is further
ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all parties and persons entitled to notice, including the Referee appointed herein.
All parties are to appear for a virtual conference via Microsoft Teams on January 15, 2025, at 11:00 a.m. If a motion for judgment of foreclosure and sale has been filed Plaintiff may contact the Part Clerk (SFC-Part32-Clerk@nvcourts.gov) in writing to request that the conference be cancelled. If a motion has not been made, then a conference is required to explore the reasons for the delay.
Mortgage Servicer: JPMorgan Chase Bank, NA -- Phone: (800) 848-9136.