Opinion
1428 CA 14-01923.
12-23-2015
WELLS FARGO BANK, N.A., as Trustee for Securitized Asset Backed Receivables LLC 2004–OP2, Mortgage Pass–Through Certificates, Series 2004–OP2, Plaintiff–Respondent, v. Cheryl A. DEERING, Carl G. Deering, et al., Defendants–Appellants.
Jason L. Schmidt, Fredonia, for Defendants–Appellants. Hinshaw & Culbertson LLP, New York City (Khardeen I. Shillingford of Counsel), for Plaintiff–Respondent.
Jason L. Schmidt, Fredonia, for Defendants–Appellants.
Hinshaw & Culbertson LLP, New York City (Khardeen I. Shillingford of Counsel), for Plaintiff–Respondent.
Opinion
MEMORANDUM:
Plaintiff commenced this foreclosure action after Cheryl A. Deering and Carl G. Deering (defendants) stopped paying on a note. We reject defendants' contention that Supreme Court erred in granting plaintiff's motion for summary judgment. As a preliminary matter, we note that defendants waived the defense of standing by failing to raise it in their answer to the complaint (see CPLR 3211[e]; JP Morgan Chase Bank, N.A. v. Butler, 129 A.D.3d 777, 780, 12 N.Y.S.3d 145; Wendover Fin. Servs. v. Ridgeway, 93 A.D.3d 1156, 1158, 940 N.Y.S.2d 391). Defendants “could not raise that defense for the first time in opposition to plaintiff's motion for summary judgment” (Wells Fargo Bank, N.A. v. Erobobo, 127 A.D.3d 1176, 1177–1178, 9 N.Y.S.3d 312, lv. dismissed 25 N.Y.3d 1221, 16 N.Y.S.3d 514, 37 N.E.3d 1158).
With respect to the substantive merits of the motion, we conclude that plaintiff met its initial burden of establishing its entitlement to judgment as a matter of law by submitting the mortgage, the underlying note, and evidence of a default (see HSBC Bank USA, N.A. v. Prime, L.L.C., 125 A.D.3d 1307, 1308, 4 N.Y.S.3d 786; Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 895, 964 N.Y.S.2d 548; I.P.L. Corp. v. Industrial Power & Light. Corp., 202 A.D.2d 1029, 1029, 609 N.Y.S.2d 472). The burden then shifted to defendants to produce “evidentiary material in admissible form demonstrating a triable issue of fact with respect to some defense to plaintiff's recovery on the note[ ]” (I.P.L. Corp., 202 A.D.2d at 1029, 609 N.Y.S.2d 472; see HSBC Bank USA, N.A., 125 A.D.3d at 1308, 4 N.Y.S.3d 786), such as “waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff” (Emigrant Mtge. Co., Inc., 105 A.D.3d at 895, 964 N.Y.S.2d 548 [internal quotation marks omitted]; see Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 183, 451 N.Y.S.2d 663, 436 N.E.2d 1265, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247).
Defendants contend that they have asserted a defense to the action inasmuch as there is a dispute regarding the exact amount owed under the promissory note. It is well settled, however, that such a dispute does not constitute a defense where, as here, it is undisputed that defendants stopped making payments and were in default (see Mishal v. Fiduciary Holdings, LLC, 109 A.D.3d 885, 886, 971 N.Y.S.2d 334). Defendants also failed to raise a triable issue of fact whether plaintiff acted in bad faith. One of the defendants testified that, when she spoke with a representative of plaintiff regarding outstanding amounts due on the escrow account, she was told that she could seek a loan modification if she missed three payments on the note (see Wells Fargo Bank, N.A. v. Meyers, 108 A.D.3d 9, 17, 966 N.Y.S.2d 108). That defendant further testified, however, that defendants never applied for a loan modification even though plaintiff sent them several applications, that they had not made any payments on the note for over a year, and that they had no intention of making any further payments on the note. Such testimony does not support defendants' assertion of bad faith on the part of plaintiff. Under the circumstances, we conclude that defendants have not raised a triable issue of fact with respect to any defense to the action (see HSBC Bank USA, N.A., 125 A.D.3d at 1308, 4 N.Y.S.3d 786; Emigrant Mtge. Co., Inc., 105 A.D.3d at 895–896, 964 N.Y.S.2d 548).
Finally, defendants did not raise a triable issue of fact whether plaintiff acted fraudulently. Indeed, we note that defendants' fraud counterclaim, which asserts that plaintiff altered the description of the mortgaged property by adding an additional parcel when the mortgage was recorded, is not pleaded with the requisite particularity (see CPLR 3016 [b] ). Defendants did not allege, among other things, that they justifiably relied on the improper description of the mortgaged premises or that they were injured thereby (see Merrill Lynch Credit Corp. v. Smith, 87 A.D.3d 1391, 1392–1393, 930 N.Y.S.2d 126; cf. Heckl v. Walsh [Appeal No. 2], 122 A.D.3d 1252, 1255, 996 N.Y.S.2d 413; see generally Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178, 919 N.Y.S.2d 465, 944 N.E.2d 1104). In any event, the court made it clear that the foreclosure action was with respect to only the parcel listed in the original mortgage (see generally United Cos. Lending Corp. v. Rogers, 45 A.D.3d 1419, 1419–1420, 845 N.Y.S.2d 884). Thus, the court did not err in dismissing the fraud counterclaim.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.