Opinion
INDEX NO.: 5077-10
05-13-2014
HSBC MORTGAGE CORPORATION (USA) Plaintiff, v. JAMES RIENZO, DIANE RIENZO, HSBC MORTGAGE CORPORATION (USA), NSMG OF MT. SINAI SCHOOL OF MEDICINE 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 o lien upon the mortgaged premises.) Defendants.
McCABE, WEISBERG & CONWAY, P.C. Attorneys for Plaintiff ERNEST E. RANALLI, ESQ. Attorney for Defendant
SHORT FORM ORDER
PRESENT:
Hon. JOSEPH C. PASTORESSA
Justice of the Supreme Court
MOTION DATE 8-14-13
ADJ. DATE__________
Mot. Seq. #001 -MotD
McCABE, WEISBERG & CONWAY, P.C.
Attorneys for Plaintiff
ERNEST E. RANALLI, ESQ.
Attorney for Defendant
Upon the following papers numbered 1 to 10 read on this motion for summary judgment; Notice of Motion/Order to Show Cause and supporting papers 1 - 10 ; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers ___; Replying Affidavits and supporting papers ___; Other ___; (and after hearing counsel in support and opposed to the motion) 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 and against the defendant James Rienzo, striking his answer and dismissing the affirmative defenses set forth therein; (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 determined as set forth below: and it is
ORDERED that the plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of this Court; 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 promptly file the affidavits of service with the Clerk of the Court.
This is an action to foreclose a mortgage on real property known as 73 Wedgewood Drive, Brookhaven. New York 11727. On February 11, 2005, the defendant James Rienzo executed an interest only adjustable-rate note in favor of HSBC Mortgage Corporation (USA) (the plaintiff) in the principal sum of $280,000.00. To secure said note, Mr. Reinzo and the defendant Diane Rienzo (the defendant mortgagors) gave the plaintiff a mortgage also dated February 11, 2005 on the property. The mortgage indicates that Mortgage Electronic Registration Systems, Inc. (MERS) was acting solely as a nominee for the plaintiff and its successors and assigns and that, for the purposes of recording the mortgage, MERS was the mortgagee of record. By way of an assignment dated March 20, 2007, the mortgage was allegedly transferred to the plaintiff prior to commencement of this action.
Mr. Rienzo allegedly defaulted on the note and mortgage by failing to make the monthly payment of interest due on or about August 1, 2009, and each month thereafter. After the defendant mortgagors allegedly failed to cure Mr. Rienzo's default, the plaintiff commenced the instant action by the filing of a lis pendens, summons and verified complaint on February 4, 2010. Parenthetically, the plaintiff re-filed the lis pendens on February 21, 2013.
Issue was joined by the interposition of Mr. Rienzo's answer sworn to on February 16, 2010. By his answer, Mr. Rienzo generally denies some of the allegations set forth in the complaint, and admits other allegations therein. In his answer, Mr. Rienzo also asserts eight affirmative defenses, alleging, among other things, the following: the failure to receive an acceleration notice or a notice pursuant to RPAPL§ 1304; an unaffordable loan; the plaintiff's failure to register to do business in New York; champerty; failure to state a cause of action; failure to provide a loan modification determination pursuant to applicable Federal Home Affordable Modification Program (HAMP) guidelines (see, 12 USC § 5219a); and the failure of the plaintiff/plaintiff's predecessor to provide loan disclosures. The remaining defendants have neither appeared nor answered herein.
According to the records maintained by the court's computerized database, a settlement conference was scheduled for and/or held before the specialized mortgage foreclosure part on October 19. 2012. On that date, it was determined that the defendant mortgagors were ineligible for any further conferences of the type contemplated by CPLR 3408. Accordingly, 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 and against Mr. Rienzo, striking his answer and dismissing the affirmative defenses therein; (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 has been filed in response to this motion.
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 Deutsch, 88 AD3d 691, 930 NYS2d 477 [2d Dept 2011]; Wells Fargo Bank v Das Karla. 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]; Washington Mut. Bank, F.A. v O'Connor , 63 AD3d 832, 880 NYS2d 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 fide 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], quoting Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467, 644 NYS2d 345 [2d Dept 1997]).
By its submissions, the plaintiff established its prima facie entitlement to summary judgment on the complaint (see, CPLR 3212; RPAPL § 1321; Wachovia Bank, N.A. v Carcano, 106 AD3d 724. 965 NYS2d 516 [2d Dept 2013]; U.S. Bank, N.A. 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]). In the instant case, the plaintiff produced, inter alia, the note, the mortgage and evidence of nonpayment (see, Federal 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]). Furthermore, the plaintiff submitted proof of compliance with the notice requirements of RPAPL § 1304 as well as the notice provisions of the mortgage prior to commencement (see, Wachovia Bank, N.A. v Carcano, 106 AD3d 724, supra; cf., Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 923 NYS2d 609 [2d Dept 2011]). Thus, the plaintiff demonstrated its prima facie burden as to the merits of this foreclosure action.
The plaintiff also submitted sufficient proof to establish, prima facie, that the affirmative defenses set forth in Mr. Rienzo's 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., N.A. v Perez, 41 AD3d 590, 837 NYS2d 877 [2d Dept 2007]; Coppa v Fabozzi, 5 AD3d 718, 773 NYS2d 604 [2d Dept 2004] [unsupported affirmative defenses are lacking in merit]; see also, Bank of America, N.A. v Lucido, 114 AD3d 714, 981 NYS2d 433 [2d Dept 2014] [plaintiff's refusal to consider a reduction in principal does not establish a failure to negotiate in good faith]; Wachovia Bank, N.A. v Carcano. 106 AD3d 724, supra [compliance with the pre-foreclosure notice requirement of RPAPL § 1304 satisfies the ''30-day notice" requirement specified in the mortgage]; Grogg v South Rd. Assoc., L.P., 74 AD3d 1021, 907 NYS2d 22 [2d Dept 2010] [the mere denial of receipt of the notice of default is insufficient to rebut the presumption of delivery]; First Wis. Trust Co. v Hakimian. 237 AD2d 249. 654 NYS2d 808 [2d Dept 1997]; Banque Arabe Et Internationale D'Investissement v One Times Square Assoc. Ltd. Partnership. 193 AD2d 387, 597 NYS2d 48 [1st Dept 1993] [ Banking Law § 200 authorizes foreign banks to loan money secured by mortgages on property in New York and to commence actions to enforce obligations under those mortgages]; HSBC Bank USA v Picarelli, 36 Misc3d 1218 [A], 959 NYS2d 89 [Sup Ct, Queens County 2012] [TILA requirements satisfied where the lender provided the required information and forms to the obligor at the closing]). Moreover, "when a mortgagor defaults on loan payments, even if only for a day, a mortgagee may accelerate the loan, require that the balance be tendered or commence foreclosure proceedings, and equity will not intervene" ( Home Sav. Of Am., FSB v Isaacson , 240 AD2d 633, 633. 659 NYS2d 94 [2d Dept 1997]).
As the plaintiff duly demonstrated its entitlement to judgment as a matter of law, the burden of proof shifted to Mr. Rienzo (see, HSBC Bank USA v Merrill, 37 AD3d 899, 830 NYS2d 598 [3d Dept 2007]). Accordingly, it was incumbent upon Mr. Rienzo 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]; Washington Mut. Bank v Valencia , 92 AD3d 774, 939 NYS2d 73 [2d Dept 2012]).
Self-serving and conclusory allegations do not raise issues of fact, and do not require the plaintiff to respond to alleged affirmative defenses which are based on such allegations (see, Charter One Bank, FSB v Leone, 45 AD3d 958, 845 NYS2d 513 [2d Dept 2007]; Rosen Auto Leasing, Inc. v Jacobs , 9 AD3d 798, 780 NYS2d 438 [3d Dept 2004]). 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, 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, 915 NYS2d 591 [2d Dept 2010]). Additionally, "uncontradicted facts are deemed admitted" ( Tortorello v Carlin, 260 AD2d 201, 206, 688 NYS2d 64 [1st Dept 1999] [internal quotation marks and citations omitted]).
Mr. Rienzo's 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, supra). In this case, the affirmative defenses asserted by Mr. Rienzo are factually unsupported and without apparent merit (see, Becher v Feller, 64 AD3d 672. supra). In any event, the failure by Mr. Rienzo to raise and/or assert his pleaded defenses in opposition to the plaintiff's motion warrants the dismissal of the same as abandoned under the case authorities cited above (see, Kuehne & Nagel v Baiden, 36 NY2d 539, supra; see also, Madeline D'Anthony Enters., Inc. v Sokolowsky, 101 AD3d 606, supra).
Under these circumstances, the Court finds that Mr. Rienzo failed to rebut the plaintiff's prima facie showing of its entitlement to summary judgment requested by it (see, Flagstar Bank v Bellafiore. 94 AD3d 1044, supra; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra; Rossrock Fund II, LP. v Commack Inv. Group, Inc. , 78 AD3d 920, 912 NYS2d 71 [2d Dept 2010]; see generally, Hermitage Ins. Co. v Trance Nite Club, Inc ., 40 AD3d 1032, 834 NYS2d 870 [2d Dept 2007]). The plaintiff, therefore, is awarded summary judgment in its favor against Mr. Rienzo (see. Federal 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]). Accordingly, Mr. Rienzo's answer is stricken, and affirmative defenses set forth therein are dismissed.
The branch of the motion wherein the plaintiff seeks an order pursuant to CPLR 1021 substituting HSBC BANK USA, N.A. for the plaintiff is granted (see, CPLR 1018; 3025[b]; Citibank, N.A. v Van Brunt Props., LLC, 95 AD3d 1158, 945 NYS2d 330 [2d Dept 2012]). The branch of the instant motion wherein the plaintiff seeks an order pursuant to CPLR 1024 amending the caption by substituting Frank Dicono and "Jane" Dicono for the fictitious defendant, John Doe, is also granted (see, PHH Mtge. Corp. v Davis, 111 AD3d 1110, 975 NYS2d 480 [3d Dept 2013]; Flagstar Bank v Bellafiore, 94 AD3d 1044, supra; Neighborhood Hous. Servs. of N.Y. City, Inc. v Meltzer , 67 AD3d 872, 889 NYS2d 627 [2d Dept 2009]). By its submissions, the plaintiff established the basis for the above-noted relief. 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 Diane Rienzo, HSBC Mortgage Corporation, NSMG of Mt. Sinai School of Medicine as well as the newly substituted defendants, Frank Dicono and "Jane" Dicono (see, RPAPL § 1321; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 914 NYS2d 647 [2d Dept 2011]). Accordingly, the defaults of the above-noted defendants are fixed and determined. Since the plaintiff has been awarded summary judgment against Mr. Rienzo, and has established the default in answering by all of 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; Ocwen Fed. Bank FSB v Miller, 18 AD3d 527. 794 NYS2d 650 [2d Dept 2005]; Vermont Fed. Bank v Chase, 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; Bank of E. Asia v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]).
Accordingly, this motion for, inter alia, summary judgment and an order of reference is determined as set forth above. The proposed long form order appointing a referee to compute pursuant to RPAPL § 1321, as modified by the Court, has been signed concurrently herewith.
__________
Hon. JOSEPH C. PASTORESSA, J.S.C.