Opinion
No. 704917/2014.
06-19-2015
MASTER HOLDING INC., Plaintiff, v. Guru P. HARIPRASAD; New York City Parking Violations Bureau ; New York City Transit Adjudication Bureau; New York City Environmental Control Board; “John Does” and “Jane Does,” said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien the premises, Defendants.
Opinion
The following papers numbered 1 to 13 were read on this motion by plaintiff for an order dismissing the answer of the defendant, GURU P. HARIPRASAD, granting summary judgment in favor of the plaintiff; for an order pursuant to RPAPL § 1321 appointing a referee to ascertain and compute the amount due to the plaintiff; and amending the caption by substituting a named defendant as a necessary party defendant in stead and place of John Doe:
| Papers | Numbered |
|---|---|
| Notice of Motion Affidavits–Exhibits | 1–7 |
| Affirmation in Opposition–Affirmation | 8–13 |
In this mortgage foreclosure action, plaintiff moves for an order striking the answer of defendant Guru P. Hariprasad; granting summary judgment against said defendant on the ground that the answer contains no valid defense and no triable issue of fact exists; granting a default judgment against the remaining defendants who have not answered; appointing a referee to compute the sums due and owing to plaintiff; and amending the caption. Defendant, Guru P. Hariprasad, pro se, has submitted opposition to the motion.
This foreclosure action pertains to the property located at 90–60 180th Street, Jamaica, New York, 11432. Based upon the record before this court, the defendant entered into an Adjustable Rate Note and Mortgage with BankUnited on May 5, 2006, in the principal amount of $450,000.00. The mortgage was subsequently assigned to plaintiff Master Holding Inc. by assignment of mortgage dated November 21, 2013 and recorded on January 14, 2014. The plaintiff asserts that defendant defaulted on his mortgage when he failed to make his monthly mortgage payments beginning October 1, 2010.
The plaintiff subsequently accelerated the defendant's mortgage and brought an action to foreclose its mortgage by filing a lis pendens and summons and complaint on July 15, 2014. The defendant was personally served on July 1, 2014 by serving the summons and complaint and RPAPL § 1303 notices on a person of suitable age and discretion at the defendant's residence. Defendant, pro se, joined issue by serving an answer on August 9, 2014 containing a general denial and asserting affirmative defenses including lack of standing, fraud, and withholding information.
A foreclosure settlement conference was scheduled by the court for September 11, 2014. Defendant, although duly notified of the conference date, failed to appear for the conference. Referee Toni Cimino issued an order directing the plaintiff to file an application for an Order of Reference by May 19, 2015.
In support of the motion for summary judgment, the plaintiff submits the affirmation of counsel, Richard Fay, Esq., the affidavit of Joe Sedeno, the Director of Collections for the loan servicer, Master Holding, Inc.; a copy of the Note and Mortgage; copies of the affidavits of service on all the defendants; a copy of the pleadings; a copy of the mortgage assignment; a copy of the 90 day notice of intent to foreclose; a copy of the RPAPL § 1303 notices served on the defendant with the summons and complaint; and a copy of the attorney Certificate of Merit pursuant to CPLR 3012–b executed by Regina Competiello, Esq., dated July 15, 2014.
In his affidavit, Joe Sedeno, Director of Collections for Master Holding, Inc. states that on May 5, 2006, defendant obtained a mortgage loan from BankUnited FSB in the principal amount of $450,000.00 in order to finance his purchase of the subject property. The mortgage loan was memorialized by an adjustable rate note and mortgage executed by Mr. Hariprasad and recorded on May 24, 2006. The Note contains an allonge with an endorsement in blank by BankUnited FSB the originator of the loan and an allonge indorsed in blank from Castle Peak 2012–1 Loan Trust payable to the order of Master Holding dated November 21, 2013. Further, the plaintiff has submitted evidence showing that the mortgage was assigned to Master Holding Inc. by assignment of mortgage dated November 21, 2013 and recorded on January 14, 2014. Mr. Sedeno states that based upon his personal examination of the records maintained by the servicer, Master Holding Inc. was in possession of the note and mortgage at the time the action was commenced. In addition, the affidavit of Mr. Sedeno states that the defendant breached the terms of the note and mortgage by failing to tender the installment which became due and payable on October 1, 2010. A demand and notice to cure the default was sent by the plaintiff to the defendant on December 7, 2010. The affidavit also states that a 90 day notice was sent to the defendant pursuant to RPAPL § 1304. He states that the total amount due including the principal balance and interest from July 31, 2014, late charges and negative escrow balance is $612,872.98.
Based upon the affidavit of Mr. Sedeno, the plaintiff asserts that it is the current holder of the note and mortgage and was the holder of the note and mortgage on the date the action was commenced. The record contains copies of the indorsed note, mortgage and assignment of mortgage to the plaintiff. Counsel asserts that based upon the evidence submitted the plaintiff has made a prima facie showing that it is entitled to summary judgment and an order appointing a referee to compute.
With respect to the defendant's affirmative defenses, plaintiff asserts that the plaintiff had standing to commence the action as the mortgage and underlying note were assigned to the plaintiff on November 21, 2013 and the action was commenced on July 15, 2014. Counsel states that the plaintiff had physical possession of the mortgage and underlying note prior to the commencement of the action. In addition, plaintiff asserts that the defendant has failed to supply sufficient factual allegation to establish a case of fraud as the defendant has not set forth factual details of material representations that were false, has not described facts of justifiable reliance on the misrepresentations or an injury resulting from the false representations. Counsel also asserts that the defendant's allegations that plaintiff is withholding information, improperly enforcing their right to payment and injuring the property rights of the defendant are conclusory and unsupported by admissible evidence.
In opposition to the motion, defendant asserts that the plaintiff lacks standing as it failed to provide the court with sufficient evidence that it held the note and mortgage at the time of the commencement of the action.
It is well settled that a plaintiff in a mortgage foreclosure action establishes a prima facie case of entitlement to summary 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 A.D.2d 540 [2d Dept.1998] ; State Mortgage Agency v. Lang, 250 A.D.2d 595(2d Dept.1998] ). Upon such a showing, the burden shifts to the defendant to produce evidence in admissible form sufficient to raise a material issue of fact requiring a trial.
This Court finds that the plaintiff's submissions are sufficient to establish its entitlement to summary judgment against defendant mortgagor, Guru Hariprasad. The moving papers demonstrate, prima facie, that none of the asserted defenses set forth in the answer of defendant are meritorious and plaintiff is entitled to summary judgment on its claims against Mr. Hariprasad (see EMC Mortg. Corp. v. Riverdale Assocs., 291 A.D.2d 370 [2d Dept.2002] ; State of New York v. Lang, 250 A.D.2d 595 [2d Dept.1998] ). As stated above, the complaint herein sufficiently sets forth a valid cause of action for foreclosure. Plaintiff has submitted a copy of the mortgage, note and affidavit from Mr. Sedeno establishing Mr. Hariprasad's default in payment. The plaintiff demonstrated proper service of the summons and complaint and showed by admissible evidence that it had been properly been assigned the note indorsed in blank and mortgage as of the date of the commencement of the action. Plaintiff demonstrated when it became the lawful holder of the note pursuant to the valid assignment of the note to it. “Where a note is transferred, a mortgage securing the debt passes as an incident to the note” (Deutsche Bank Natl. Trust Co. v. Spanos, 102 AD3d 909 [2d Dept.2013] ). Therefore, “either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation” (HSBC Bank USA v. Hernandez, 92 AD3d 843 [2d Dept.2012] ). Since the mortgage passes with the debt that is evidenced by the note as an inseparable incident thereto, the plaintiff established its standing to commence the within action (see US Bank Natl. Assn. v. Cange, 96 AD3d 825 [2d Dept.2012] ; U.S. Bank, NA v. Sharif, 89 AD3d 723 [2d Dept 2011] ; Bank of New York v. Silverberg, supra] ).
Accordingly, this court finds that the conclusory allegations set forth in defendant's affirmative defenses are insufficient to defeat the motion for summary judgment. Therefore, the plaintiff's motion for summary judgment is granted and the affirmative defenses contained in the defendant's answer are stricken. The submissions further reflect that the plaintiff is entitled to amend the caption to substitute Amanda Hariprasad in place of the John Doe and Jane Doe defendants. That branch of the motion for a default judgment against the remaining defendants who have not answered or appeared herein is granted. Plaintiff's further application for the appointment of a referee to compute the amounts due under the subject mortgage is also granted and the application to amend the name of the plaintiff is granted.
Order of Reference signed contemporaneously herewith.