Opinion
12488/03.
Decided June 7, 2004.
This is an action to foreclose a mortgage, commenced by plaintiff who purports "upon information and belief" to be "the sole, true and lawful owner of the bond/note and mortgage securing the same" (Verified Complaint, ¶ ELEVENTH). At the same time, plaintiff claims to have no "equitable interest" in the mortgage, but to be the "agent" of the entity that owns the "equitable interest," Washington Mutual Bank, F.A. ( see Reply Affirmation, dated February 25, 2004, ¶ 4).
In opposition, defendant Burek alleges that the true mortgagee is, in fact, Washington Mutual Bank, F.A., which is not a party hereto, and that at the commencement of this action he was current in his payments to that entity through the date of the alleged default, April 1, 2003. In addition, he points out that plaintiff has failed and refused to respond to the discovery demands annexed to his Answer of August 27, 2003, which inter alia sought to clarify plaintiff's status as agent, and to require it to substantiate the alleged default. Rather, it appears that plaintiff ignored those demand for five months and then made the instant motion, dated January 16, 2004.
It is well-settled that summary judgment is a drastic remedy and should not be granted when there is any question as to the moving party's right to such dispositive relief. This is especially true when as here, (1) it appears from the pleadings that plaintiff is merely the self-described agent of a principal, and may not have the standing it asserts ( see, e.g., Richards, Jonathan A., "Tracking Mortgage Activity Electronically: Registry System Also Offers To Act As Record Holder But Legal Questions Have Been Raised," New York Law Journal, August 19, 2002, p. 5, col. 3); and (2) there are questions of fact concerning whether defendant is in default. Defendant points to his own banking records which indicate he is current, and asserts that any perceived default is due to plaintiff's own negligence in properly applying the tendered payments.
It may well be true, as plaintiff concedes in its reply papers, that this case is no more than the product of "a problem in communication" between the parties. However, plaintiff cannot bootstrap a communication problem, particularly one that may be laid at its own feet, into a summary right to foreclosure. Nor may plaintiff finesse the appropriate demands of defendant for amplification of its pleadings by ignoring them for six months, and then moving for summary judgment (see, Kelly v. Fleet Bank, 229 AD2d 659 [3rd Dept. 1996]). Similar conduct has been condemned by the court as frivolous ( Lewis v. Agency Rent-A-Car, 168 AD2d 435 [2nd Dept. 1990]). Moreover, contrary to plaintiff's contention, its motion for summary judgment did not suspend its obligation to answer defendant's Demand for a Bill of Particulars, as a bill of particulars is not a disclosure device ( Northway Engineering, Inc. v. Felix Industries, Inc., 77 NY2d 332, 335).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case, and its failure to make such showing requires summary denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York University Medical Center, 64 NY2d 851; Empbanque Capital Corp. v. Griffith, 198 AD2d 259 [2nd Dept. 1993]).
To the extent indicated above, plaintiff has failed to meet this burden. In this regard, plaintiff's reliance upon Fairbanks Capital Corp v. Nagel ( 289 AD2d 99 [1st Dept. 2001]) for the proposition that it, "as holder of the legal title, clearly has standing to bring this action" (Reply Affirmation, ¶ 5) is misplaced. In that case, the plaintiff "expressly maintained [the] action in its capacity as servicing agent for the Trustee, which the complaint identified as the mortgage holder" ( Fairbanks Capital Corp. v. Nagel, supra at 100). Here, as noted, plaintiff holds itself out, albeit upon information and belief, to be "the sole, true and lawful owner of the bond/note and mortgage securing the same" an assertion placed in question by its own counsel in his Reply Affirmation. Moreover, it cannot be said as a matter of law that plaintiff is the "sole, true and lawful owner" as alleged in the complaint. As the New York State Attorney General has opined, the mere recital of the claim by plaintiff in a document submitted for recording is of "no legal effect" ( 2001 WL 1095070 [NYAG]). Similarly misplaced is plaintiff's reliance on Merscorp, Inc. v. Romaine, 295 AD2d 431 [2nd Dept. 2002]. Merscorp held no more than that the act of recording a mortgage by the Suffolk County Clerk was "ministerial in nature," and that the Clerk did not have the statutory authority to look beyond the four corners of a mortgage document that otherwise satisfied the limited requirements of the recording statute.
Moreover, even were this Court to look beyond the deficiencies of plaintiff's moving papers, defendant has adequately raised material questions of fact as to plaintiff's standing to bring this action and whether defendant is, in fact, in default of his mortgage obligations.
Accordingly, it is
ORDERED that plaintiff's motion for summary judgment is denied; and it is further
ORDERED that plaintiff shall comply with the outstanding Demand for a Bill of Particulars within twenty days of service upon it of a copy of this Order with Notice of Entry.