Opinion
33167/08.
Decided January 18, 2011.
Stagg, Terenzi, Confusione Wabnik, LLP, Garden City, NY, Attorney for Plaintiff.
Adam Leitman Baily, P.C., New York, NY, Attorney for Defendant Roberts.
DECISION/ORDER
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Order to Show Cause/Notice of Motion and
Affidavits/Affirmations Annexed .................................... 1,2
Answering Affidavits/Affirmations ................................. 3
Reply Affidavits/Affirmations .........................................
Memoranda of Law ..........................................................
Other ..........................................................................
Upon the foregoing cited papers, the Decision/Order on this motion is as follows:
Plaintiff moves for an order granting summary judgment against defendant Denyse Roberts (hereinafter "defendant") as to liability, striking the affirmative defenses in defendant's verified answer and appointing a referee to compute the amounts due to plaintiff under the mortgage being foreclosed.
In addition to the aforementioned relief, plaintiff also moved to be substituted as plaintiff in this action, to amend the caption and to permit the instant attorney to appear as counsel for plaintiff. However, these issues were addressed by an order of this court dated July 14, 2010.
Plaintiff commenced this action by the filing of a summons and verified complaint on December 11, 2008. Defendant executed two mortgage notes with Washington Mutual Bank (hereinafter "WaMu"), which were consolidated into one mortgage note dated March 31, 2004. Subsequently, WaMu was closed by the Office of Thrift Supervision and the Federal Deposit Insurance Corporation (hereinafter "FDIC") was named receiver. The complaint alleges that by virtue of its acquisition of WaMu's assets from the FDIC, on September 25, 2008, JPMorgan Chase Bank (hereinafter "Chase") became the owner of that mortgage note. The complaint alleges that defendant failed to comply with the terms and provisions of the mortgage note "by failing and omitting to pay the installments of principal and interest which became due on the 1st day of August, 2008, and on the 1st day of each month thereafter. . . ." Chase elected to accelerate the mortgage upon defendant's alleged default and made payable the entire unpaid principal balance of $1,108,327.85. In her answer, defendant denied having defaulted on said mortgage and asserted several affirmative defenses. On December 30, 2009, Chase assigned the mortgage to GS Brooklyn Apts. LLC (hereinafter "GSB") and on March 29, 2010, GSB further assigned the mortgage to plaintiff.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); GE Capital Mortg. Services Inc. v. Mittelman, 238 AD2d 471 (2d Dept 1997).
To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish "the existence of the mortgage and mortgage note, ownership of the mortgage, and the defendant's default in payment (citations omitted). Campaign v. Barba , 23 AD3d 327 (2d Dept 2005). See Marculescu v Ovanez , 27 AD3d 701 (2d Dept 2006). "Ownership of the note and mortgage may be established by the lending documents themselves or by proof that the plaintiff is the owner of the note and mortgage by reason of an assignment of both the note and mortgage by the owner thereof to the plaintiff or by the owner's endorsement of the note and its written assignment of mortgage to the plaintiff ( Federal Nat. Mortg. Ass'n v. Youkelsone, 303 AD2d 546)." LaSalle Bank Nat. Ass'n v. Lamy, 12 Misc 3d 1191 (Sup Ct, Suffolk County 2006). See Campaign v. Barba , 23 AD3d 327 (2d Dept 2005); U.S. Bank Trust Nat. Ass'n Trustee v. Butti , 16 AD3d 408 (2d Dept 2005).
In support of its motion for summary judgment, plaintiff submits the affidavit of plaintiff's vice president, Ms. Halpern. As stated above, GSB assigned the mortgage to plaintiff on March 29, 2010, and therefore, Ms. Halpern did not have personal knowledge of the facts alleged in the summons and complaint. Instead, she relies upon the affidavits of Chase's vice president, Ms. Miller. In her affidavit, Ms. Miller briefly mentions that defendant defaulted on the mortgage payment which became due on November 1, 2008, a date different from that stated in the summons and complaint. Ms. Miller annexes a "simplified" summary schedule of defendant's loan payment history. She states that the "Loan Payment History is a business record maintained by the Bank in the ordinary course of business." However, to be admissible as a business record, a document must have been made in the regular course of business, and it must have been the regular course of the business to make such a record, at the time of the act, transaction, occurrence, or event recorded, or within a reasonable time thereafter. See CPLR § 4518(a); People v. Kennedy, 68 NY2d 569 (1986). The mere filing of papers received from other entities, "even if they are retained in the regular course of business, is insufficient to qualify the documents as business records, because such papers simply are not made in the regular course of business of the recipient, who is in no position to provide the necessary foundation testimony(citations omitted)." Lodato v. Greyhawk North America, LLC, 39 AD3d 494 (2d Dept 2007). Ms. Miller fails to lay the proper foundation to support the admissibility of the summary schedule. Therefore, the court cannot consider the summary schedule in support of this motion.
The remainder of Ms. Miller's affidavits address the allegation that defendant defaulted on the mortgage by failing to procure or renew insurance on the property. Ms. Miller maintains that this constituted an "Event of Default" under the mortgage. The summons and complaint makes no mention of defendant's alleged failure to maintain insurance as the reason for defendant's default under the mortgage. Ms. Miller further claims that Chase was compelled to obtain and pay for insurance coverage on the property and bill defendant for the premium charge of $30,000. This "forced place" insurance premium appears on the summary schedule referenced by Ms. Miller. Even if the summary schedule was admissible, Ms. Miller fails to explain how the payments were applied. She also claims that defendant defaulted on the mortgage by failing to pay "the outstanding non-real estate taxes and other assessments filed against her property." However, once again, the complaint makes no mention of defendant's failure to pay non-real estate taxes.
Based upon the foregoing, the Court finds that plaintiff has failed to make a prima facie showing of entitlement to summary judgement as a matter of law, and therefore, the motion is denied in its entirety. In view of the above finding, the court need not address defendant's opposition to the motion.
The foregoing shall constitute the Decision and Order of the Court.