Opinion
01729-2010
02-04-2019
JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff, v. Roger V. ROWE a/k/a Roger Rowe, Hortense N. Rowe a/k/a Hortense Rowe, Boardwalk Regency Corp. c/o Bally's Park Place, Mashantucket Pequot Gaming Enterprise d/b/a Foxwoods Resort Casino, American Express Company, American Express Centurion Bank, Bank of America, N.A., Successor By Merger To Fleet National Bank, New York State Department of Taxation and Finance, United States of America, and "John Doe #1" Through "John Doe #10," The Last Ten Names Being Fictitious and Unknown To the Plaintiff, the Person or Parties Intended Being the Person or Parties, If Any, Having or Claiming an Interest in or Lien Upon the Mortgaged Premises Described in the Complaint, Defendants.
SHAPIRO, DICARO & BARAK, LLC, Attorneys for Plaintiff, 175 Mile Crossing Blvd.Rochester, NY 14624 JEFFREY HERZBERG, P.C., Attorney for Defendants Rowe, 300 Rabro Drive, Ste 104, Hauppauge, NY 11788
SHAPIRO, DICARO & BARAK, LLC, Attorneys for Plaintiff, 175 Mile Crossing Blvd.Rochester, NY 14624
JEFFREY HERZBERG, P.C., Attorney for Defendants Rowe, 300 Rabro Drive, Ste 104, Hauppauge, NY 11788
Robert F. Quinlan, J.
Upon the following papers, numbered # 1-79 read on plaintiff's motion for summary judgment, associated relief and appointment of a referee pursuant to RPAPL § 1321 and supporting papers:# 1-41 ; defendants' opposition and supporting papers: # 42-64 ; and plaintiff's reply affirmation and supporting papers: # 65-79 ; it is,
ORDERED that plaintiff JPMorgan Chase Bank, National Association's motion for summary judgment dismissing defendants Roger V. Rowe and Hortense N. Rowe's affirmative defenses, striking their answer, setting and fixing the default of the non-answering, non-appearing defendants, amending the caption and appointing a referee to compute pursuant to RPAPL § 1321, is granted; it is further
ORDERED that the caption is amended as indicated in the proposed order submitted by plaintiff to remove the "JOHN DOE" defendants and to substitute Federal National Mortgage Association as plaintiff; and it is further
ORDERED that the proposed order submitted by plaintiff, as modified by the court, is signed contemporaneously with this decision, which shall include the following additional language:
ORDERED that plaintiff is directed to serve an executed copy of the order of reference amending the caption of this action upon the Calendar Clerk of this Court within 30 days of the date of this order and all further proceedings are to proceed under that caption; and it is further;
ORDERED that plaintiff is to include in any proposed order of judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Suffolk County Foreclosure Surplus Monies form contained in Suffolk County Administrative Order # 41-13; and it is further
ORDERED , that, if a prior notice of pendency is outdated, plaintiff is directed to file a successive notice of pendency at least twenty (20) days prior to the submission of any proposed judgment of foreclosure and sale, submitting a copy thereof with proof of filing with any proposed judgment of foreclosure and sale; and it is further.
ORDERED that within 30 days of the date of this order, plaintiff is to serve a copy of the order of reference upon all parties who have appeared in this action, as well as upon the referee and thereafter file the affidavits of service with the Clerk of the Court; and it is further
ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee, and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order (plaintiff's submissions); defendants may submit written objections and proof in support thereof (defendants' objections) to the referee within 14 days of the mailing of plaintiff's submissions; and it is further
ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further
ORDERED that the referee's duties are defined by this order of reference ( CPLR 4311, RPAPL § 1321 ), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee's report is merely advisory and the court is the ultimate arbiter of the issues, if defendants objections raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within his/her report; and it is further
ORDERED that if defendants objections have been submitted to the referee, defendants shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to submit defendants objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale; failure to raise and submit defendant's objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Wednesday, June 26, 2019 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined.
The prior history of this action to foreclose a mortgage upon residential real property located at 116 Madison Avenue, Amityville, Suffolk County, New York is set forth in the decision of the court placed on the record after oral argument of plaintiff JPMorgan Chase Bank, National Association's ("plaintiff") motion upon the default of defendants Roger V. Rowe and Hortense N. Rowe ("defendants") in answering the summons and complaint (Mot. Seq. # 001) and defendants' cross-motion to dismiss (Mot. Seq. # 002) on January 13, 2017. That decision denied both plaintiff's motion and defendants' cross-motion, but granted defendants the opportunity to file a late answer, which defendants timely served.
Plaintiff now moves for summary judgment dismissing the affirmative defenses raised in defendants' answer, striking their answer, setting and fixing the default of the non-answering, non-appearing defendants, amending the caption to remove the "John Doe" defendants, substituting Federal National Mortgage Association in plaintiff's stead and appointing a referee to compute pursuant to RPAPL § 1321. Defendants filed opposition, raising arguments that support their claim of plaintiff's lack of standing to prosecute the action (defendants' 2nd and 4th affirmative defenses), their claim that by offering defendants a trial modification and accepting their payments thereunder but refusing defendants a permanent loan modification plaintiff's waived its right to continue this foreclosure action (defendants' 5th affirmative defense) and that defendants' outstanding discovery requests precluded granting summary judgment.
The court notes that defendants failed to support their 1st, 3rd, 6th, 7th and 8th affirmative defenses in opposition to plaintiff's motion and they are accordingly dismissed (see Kuehne & Nagel Inc. v. Baiden , 36 NY2d 539 [1975] ; Kronick v. L. P. Therault Co., Inc. , 70 AD3d 648 [2d Dept 2010] ; New York Commercial Bank v. J. Realty F. Rockaway, Ltd. , 108 AD3d 756 [2d Dept 2013] ; Katz v. Miller , 120 AD3d 768 [2d Dept 2014] ). Further, although defendants' 7th affirmative defense raised compliance with RPAPL § 1304, defendants apparently abandoned it in light of plaintiff's submissions. Those submissions established that this action was filed on January 11, 2010, three days before the amended version of that statute took effect which applied the requirements of RPAPL § 1304 to all home loans. As a result of the filing date, as plaintiff's submissions established that the loan and mortgage here were not sub prime, high cost or non-traditional home loans, the only home loans required to comply with the statutory conditions precedent at that time, this action was not required to meet the requirements of RPAPL § 1304.
Defendant's 3rd affirmative defense claimed that there was no evidence that plaintiff "ever accelerated the outstanding indebtedness before commencing this ... action." From its language, this affirmative defense does not refer to the notice of default required by the mortgage, which if raised would be required to be proven by plaintiff as part of its prima facie case (see GE Capital Mtg. Services, Inc. v. Mittelman , 238 AD2d 471 [2d Dept 1997] ; Wells Fargo Bank, N.A. v. Osias , 156 AD3d 942 [2d Dept 2017] ), and in opposition defendants failed to so argue that this defense referred to that notice of default. Having failed to raise the issue, defendants have waived it (see First Northern Mtge. Corp v. Yatrakis , 154 AD2d 433 [2d Dept 1989] ; Nationstar Mtge., LLC v. Vordermeier , 165 AD3d 822 [2d Dept 2018] ). As argued by plaintiff, there is no requirement that plaintiff accelerate the loan prior to filing the lawsuit, it is the filing of the lawsuit which accelerates the loan by its language (see Deutsche Bank Natl. Trust Co. v. Adrian , 157 AD3d 934 [2d Dept 2018] ; 21st Mtge. Corp. v. Osorio , 167 AD3d 823 [2d Dept 2018] ).
Defendants' 8th affirmative defense, that the amount claimed owed by plaintiff is in dispute is not a defense to the action, but instead is an issue to be raised upon a report to the court of the amount due by a referee appointed pursuant to RPAPL § 1321 (see Long Island Savings Bank of Centereach, FSB v. Denkensohm , 222 AD2d 659 [2d Dept 1995] ; Excel Capital Group Corp. v. 225 Ross St. Realty, Inc. , 165 AD3d 1233 [2d Dept 2018] ).
Defendants' attempt to support their 5th affirmative defense in opposition, arguing that by retaining defendants' payments made during a trial loan modification that failed to result in a permanent loan modification, plaintiff waived its right to continue prosecution of this foreclosure action. The argument is unsupported by law and without merit. Any payments that may have been made can be the subject of the computations to be made by an appointed referee and subject to final approval by the court. This affirmative defense is dismissed.
Defendants' argued 2nd and 4th affirmative defenses are also dismissed. In opposition and reply, both parties spend much effort in discussing the proof of plaintiff's standing through the affidavits submitted by plaintiff, making arguments that only relate to the mortgage of December 15, 2004 between plaintiff's predecessor in interest, Washington Mutual Bank ("WAMU") and defendants. Plaintiff's proof succeeds in establishing its purchase of the loan as an asset of WAMU sold to it by the Federal Deposit Insurance Company as Receiver of WAMU, and defendants' opposition raises no legitimate questions of fact as to this. As successor by purchase of the WAMU asset of the note and mortgage, just as with a merger, plaintiff is put in the position of WAMU as the original mortgagee (see Citimortgage, Inc. v. Goldberg , 134 AD3d 880 [2d Dept 2015] ; US Bank Natl. v. Akande , 136 AD3d 887 [2d Dept 2016] ; Citibank, N.A. v. Corrado , 162 AD3d 994[2d Dept 2018] ). Having established this, there is no need to discuss affidavits, assignments, allonges or other transfers of the note or mortgage. As the court must search the record on a summary judgment motion, the court notes that although not mentioned by either party, plaintiff has attached a copy of the original note and CEMA to the complaint, which sufficiently establishes its standing under these facts (see Nationstar Mortg., LLC v. Catizone , 127 AD3d 1151 [2d Dept 2015] ; Nationstar Mortg., LLC v. Weisblum , 143 AD3d 866 [2d Dept 2016] ; Bank of America, NA v. Wheatley , 158 AD3d 736 [2d Dept 2018] ; Deutsche Bank Natl. Trust Co. v. Homar , 163 AD3d 522 [2d Dept 2018] ; US Bank. N.A. v. Greenberg , ––– AD3d ––––, 2019 NY Slip Op 00323 [2d Dept 2019] ).
As plaintiff has established its standing, it has also established its ability to transfer its interests to Federal National Mortgage Association as plaintiff in its stead, despite arguments to the contrary made by defendants, and the caption is accordingly amended.
Finally, defendants' arguments that outstanding discovery precludes the granting of summary judgment are without merit. Of the ten areas of inquiry raised in defendants' discovery demands, five relate to the amounts owed by defendants which, as indicated above, can be challenged in the process set by the appointment of a referee to compute, one relates to the inapplicable RPAPL § 1304 notices, two request copies of default notices, an issue not raised in the answer or opposition, one relates to standing, an issue resolved by the attachment of the note to the complaint (see Deutsche Bank Natl. Trust Co. v. Denardo , 167 AD3d 710 [2d Dept 2018] ) and the last asks for a copy of appraisals of the property by plaintiff. To succeed on a claim that outstanding discovery precludes summary judgment, defendants must offer an evidentiary basis to show discovery would lead to relevant evidence; mere hope or speculation is insufficient (see Singh v. Avis Rent A Car Sys., Inc. , 119 AD3d 768 [2d Dept, 2014] ; Williams v. Spencer-Hall , 113 AD3d 759 [2d Dept 2014] ; Citimortgage, Inc. v. Guillermo , 143 AD3d 852 [2d Dept 2016] ; U.S. Bank, N. A. v. Rose , 165 AD3d 1310 [2d Dept 2018] ; Wells Fargo Bank, N. A. v. Sasson , 167 AD3d 818 [2d Dept 2018] ). Defendants have failed to meet this burden, summary judgment is not preclude and is granted.
As plaintiff has established its entitlement to summary judgment, its motion is granted, defendants' affirmative defenses are dismissed, defendants' answer is dismissed and stricken, the default of the non-appearing, non-answering defendants are fixed and set, plaintiff's application to amend the caption to remove the "John Doe" defendants and to substitute Federal National Mortgage Association as plaintiff is granted, as is plaintiff's application for the appointment of a referee pursuant to RPLAPL § 1321.
The proposed order submitted by plaintiff, as modified by the court, is signed contemporaneously with the signing of this order.
The action is set for status conference on Wednesday, June 26, 2019 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary.
This constitutes the order and decision of the Court.