Opinion
14421/2013
06-29-2015
JPMorgan Chase Bank, National Association, S/B/M CHASE HOME FINANCE, Plaintiff, v. Christine Washington A/K/A CHRISTINE DIONNE WASHINGTON, CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD, CITY OF NEW YORK DEPARTMENT OF TRANSPORTATION PARKING VIOLATIONS BUREAU, CITY OF NEW YORK TRANSIT AUTHORITY TRANSIT ADJUDICATION BUREAU, and JOHN DOE AND JANE DOE No.1 through #7, the last seven(7) names being fictitious and unknown to the plaintiff, the persons or parties intended being the tenants, occupants, persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.
This foreclosure action pertains to the property located at 112-05 203rd Street, St. Albans, New York, 11412. Based upon the record before this court, defendant Christine Washington entered into a note and mortgage with Lend America on January 16, 2008 in the principal amount of $471,415.00. The note contains an allonge with an indorsement from Lend America to JPMorgan Chase Bank, NA. The mortgage securing the premises as collateral security for the Note was executed by the defendant on January 16, 2008 and recorded on February 14, 2008.
Thereafter, the mortgage was assigned to Chase Home Finance, LLC by way of an assignment dated January 26, 2009 and recorded on February 6, 2009. On May 1, 2011, JPMorgan Chase Bank, National Association became successor by merger to Chase Home Finance, LLC. Following the commencement of the action, the plaintiff assigned the mortgage to Bayview Loan Servicing LLC by an assignment of mortgage executed on April 4, 2014 and recorded on September 22, 2014. The plaintiff asserts that defendant defaulted on the mortgage when she failed to make her monthly mortgage payment beginning July 1, 2008.
Pursuant to the terms of the mortgage, a demand letter and notice to cure was sent to defendant on May 13, 2013. A 90 day pre-foreclosure notice was also sent to the defendant on February 1, 2013. The plaintiff subsequently accelerated the defendants' mortgage and brought an action to foreclose by filing a lis pendens and summons and complaint on July 29, 2013. The plaintiff submits affidavits of service on all of the named defendants. Christine Washington was served personally with a copy of the summons and complaint and all necessary RPAPL § 1303 notices pursuant to CPLR 308, at her residence on November 16, 2013. The defendant failed to serve an answer to the complaint and is in default.
A Residential Foreclosure Conference Order was entered on July 22, 2014. The defendant appeared as did counsel for the plaintiff. Referee Toni Cimino found that the defendant failed to submit a package pursuant to the schedule set in April. The plaintiff was directed to submit a motion seeking an Order of reference by March 3, 2013.
In support of the motion for summary judgment, the plaintiff submits the affirmation of counsel, Stephen J. Vargas, Esq., the affidavit of Gary Locke, Document Coordinator of Bayview Loan
Servicing, LLC the assignee of the plaintiff; a copy of the note and mortgage; copies of the affidavits of service on all the defendants; a copy of the pleadings; copies of the assignments of the mortgage and note; a copy of the CPLR § 1304 90 day notice of intent to foreclose; a copy of the RPAPL § 1303 notices served on the defendants with the summons and complaint; a copy of the residential foreclosure part conference order; and a copy of the attorney affidavit pursuant to the Administrative Order of the Chief Administrative Judge A/O 431/11, executed by Marianna Dalton, Esq. dated February 10, 2014.
In his affidavit, Gary Locke, states that based upon his personal knowledge and his personal review of the bank's business records, the defendant executed a Note January 16, 2008 in the principal amount of $471,415.00 secured by a mortgage encumbering the property located at 112-05 203rd Street St. Albans, New York. He states that the mortgage was recorded on February 14, 2008. The mortgage was assigned to Chase Home Finance LLC as memorialized by an assignment of Mortgage recorded on February 6, 2009. The mortgage was further assigned to The Secretary of Housing and Urban Development as memorialized by an Assignment of Mortgage recorded on June 12, 2014. The mortgage was further assigned to Bayview Loan Servicing LLC as memorialized by an Assignment of Mortgage recorded on September 22, 2014. He states that JPMorgan Chase Bank, National Association, s/b/m Chase Home Finance was in possession of the original note at the tie of the commencement of the action. He states that the defendant defaulted under the terms of the Note and mortgage by failing to tender payment fr the monthly installment due on July 1, 2008. The defendant's default has not been cured and the loan balance as been accelerated making the entire balance due and owing pursuant to the terms of the loan document. He states that a notice of default and notice to cure was mailed to the defendant on May 13, 2013. He also states that a 90 day pre-foreclosure notice was sent to the plaintiff on February 1, 2013 to the defendant's address by registered or certified and first class mail. He also states that the plaintiff's unpaid principal balance as of November 5, 2014 is $469,855.75.
Plaintiff now seeks an order granting a default judgment against defendant Washington and the non-answering defendants. Plaintiff contends, based upon the evidence submitted, that it has made a prima facie showing that it is entitled to summary judgment and the appointment of a referee to compute. Plaintiff asserts that the defendants were all lawfully served with a summons and complaint and that the Court, therefore, has personal jurisdiction. Plaintiff asserts that it has established, prima facie, entitlement to summary judgment based upon its submission of the note, the mortgage, the notice of default, and the affidavit of Mr. Locke evidencing the defendants' failure to make the contractually required loan payments. Counsel also asserts that all of the defendants are in default having failed to serve a timely answer to the summons and complaint and no triable issues of fact or affirmative defenses have been raised by the defendants.
Defendant Christine Washington submits opposition to the motion on the ground that the plaintiff lacks standing or authority to commence the instant foreclosure action.
In reply, plaintiff asserts that defendant Christine Washington did not serve an answer to the complaint denying any allegations in the complaint including that it had standing to commence the action. As such plaintiff asserts that the defendants are in default and waived their right to contest the issue of standing (see Bank of NY v Cepeda, 120 AD3d 451 [2d Dept. 2014]; Freedom Mtge. Corp. v Toro, 113 AD3d 815 [2d Dept. 2014]; JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821 [2d Dept. 2014]; HSBC Bank USA, N.A. v Taher, 104 AD3d 815 [2d Dept. 2013]).
Plaintiff submits a copy of the affidavit of service showing that the defendant were served with the summons and complaint as well as the RPAPL § 1303 notice in accordance with CPLR 308 (1) at the subject property address on November 16, 2013. The affidavit of service of the process server constitutes prima facie evidence that the defendant was properly served with notice (see Bank of NY v Segui, 68 AD3d 908 [2d Dept. 2009]; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524 [2d Dept. 2008]; Jefferson v Netusil, 44 AD3d 621 [2d Dept. 2007]).
It is well settled that a plaintiff in a mortgage foreclosure action establishes a prima facie case of entitlement to judgment through submission of proof of the existence of the underlying note, mortgage and default in payment after due demand (see Witelson v Jamaica Estates Holding Corp. I, 40 AD3d 284 [1st Dept. 2007]; Marculescu v Ouanez, 27 AD3d 701 [2d Dept. 2006]; US. Bank Trust National Assoc. v Butti, 16 AD3d 408 [2d Dept. 2005]; Layden v Boccio, 253 AD2d 540 [2d Dept. 1998]; State Mortgage Agency v Lang, 250 AD2d 595 [2d Dept.1998]).
Plaintiff has submitted a copy of the mortgage, note, and affidavit from Mr. Locke establishing defendants' default in payment. The plaintiff demonstrated proper service of the summons and complaint and RPAPL § 1303 notices and showed by admissible evidence that it had standing to commence the action as it had properly been assigned the defendants' prior mortgage and had properly been in physical possession of the note as of the date of the commencement of the action. Thus the plaintiff demonstrated that it had standing to commence the action (see Aurora Loan Services, LLC v Taylor, 2015 NY Slip Op 04872 [2015]).
This Court finds that the plaintiff's submissions are sufficient to establish its entitlement to a default judgment against the defaulting defendant mortgagor, Christine Washington. Said defendant did not seek to vacate her default in answering the complaint.
In addition, the defendant waived any argument that plaintiff lacked standing to commence the foreclosure action by failing to interpose an answer or file a timely pre-answer motion which asserted the defense of standing (see CPLR 3211(e);U.S. Bank, N.A. v. Bernabel, 125 AD3d 541 [1st Dept. 2015]; Bank of NY v Cepeda, 120 AD3d 451 [2d Dept 2014]; Southstar III, LLC v. Enttienne, 120 AD3d 1332 [2d Dept. 2014}; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983 [2d Dept. 2010). The defense of lack of standing is waivable as it affects only a court's power to render a judgment on the merits for the plaintiff and does not implicate the court's jurisdiction or competence to entertain an action (see Wells Fargo Bank Minnesota, N.A. v Mastropaola, 42 AD3d 242-243 [2d Dept. 2003]).
Accordingly, for all of the above stated reasons, the instant motion for a default judgment against the defendants who have not timely answered or appeared herein, including Christine Washington is granted. The submissions reflect that plaintiff is entitled to amend the caption to delete the "John Doe" and "Jane Doe" defendants. Plaintiff is also granted leave to amend the name of the petitioner to Bayview Loan Servicing LLC. Plaintiff's further application for the appointment of a referee to compute the amounts due under the subject mortgage is granted.
Order of Reference signed contemporaneously herewith.
Dated: June 29, 2015
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.