Opinion
Index No. 204125/2022
03-13-2024
WILMINGTON TRUST, N.A., Plaintiff, v. HEIDI CARLSON, et al., Defendants.
PLAINTIFF'S ATTORNEY: Friedman Vartolo LLP DEFENDANT'S ATTORNEY: William Grausso, Esq.
Unpublished Opinion
MOTION DATE: 11/21/2023
PLAINTIFF'S ATTORNEY: Friedman Vartolo LLP
DEFENDANT'S ATTORNEY: William Grausso, Esq.
PRESENT: HON. S. BETSY HECKMAN TORRES, J.S.C.
S. BETSY HECKMAN TORRES, J.S.C.
Upon the following electronically filed documents listed on NYSCEF as #s 25-51 read on this motion (#001) by plaintiff seeking, among other things, summary judgment, opposition and reply thereto, and upon due consideration; it is
ORDERED that this motion (001) by the plaintiff for, inter alia, an order: (1) pursuant to CPLR. 3212 awarding summary judgment in its favor and against the answering defendant Heidi Carlson-Alisicio (hereinafter "defendant"), striking her answer and dismissing the affirmative defenses set forth therein; (2) pursuant to CPLR 3215 fixing the defaults of the nonanswering defendants; (3) pursuant to RPAPL § 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) amending the caption is granted; and it is further
ORDERED that the plaintiff is directed to serve a copy of this order with notice of entry upon all parties who have appeared herein within thirty (30) days of the date of this order, and to promptly file the affidavits of service with the Clerk of the Court.
This is an action to foreclose a mortgage on real property located in Blue Point, New York. On September 29, 2006, defendant executed a note in favor of plaintiffs predecessor American Brokers Conduit in the principal amount of $305,600. To secure said note, on the same date, defendant executed a mortgage on the property in favor of Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for the lender. On March 1, 2009, defendant executed a loan modification agreement with American Home Mortgage Servicing, Inc. On October 1, 2010, defendant executed a second loan modification with American Home Serving, Inc. The mortgage was subsequently assigned to plaintiff by assignment of mortgage dated August 20, 2015. On August 27, 2019, defendant executed a third loan modification agreement in favor of plaintiff. Defendant allegedly defaulted on the note and mortgage by failing to make monthly payments of principal and interest which had come due on October 1.2019 and continuing thereafter. After defendant failed to cure the default in payment, plaintiff commenced the instant action by the filing of a lis pendens, summons and complaint on October 27, 2022. Issue was joined by the interposition of defendant's answer dated November 23, 2022. The remaining defendants have not answered the complaint. Plaintiff now moves for summary judgment and an order of reference. The defendant opposes plaintiffs motion.
By her answer, defendant generally denies the material allegations set forth in the complaint, and asserts twenty-one (21) affirmative defenses. The grounds for the answering defendant's opposition to plaintiffs motion is limited to plaintiffs alleged lack of standing, and plaintiff failed to properly serve defendant with the notice of default as required by the mortgage.
At the outset, defendant seemingly seeks in her opposition papers affirmative relief in the nature of dismissing the complaint. To the extent that defendant seeks affirmative relief in her opposition papers, that request for relief is denied as improperly before the court (CPLR 2215). In the absence of a notice of cross motion, a defendant is not entitled to obtain any affirmative relief (see, Lee v. Colley Group McMontebello, LLC, 90 A.D.3d 1000 [2d Dept 2011]; DeLorenzo v. Gabbino Pizza Corp., 83 A.D.3d 992 [2d Dept 2011]).
A plaintiff seeking summary judgment in a foreclosure action is required to produce the mortgage, the unpaid note, and evidence of default (see DU Mtg. Capital, Inc. v Sosa, 153 A.D.3d 666, 60 N.Y.S.3d 278 [2d Dept 2017]; Pennymac Holdings, LLC v Tomanelli, 139 A.D.3d 688, 32 N.Y.S.3d 181 [2d Dept 2016]; Wachovia Bank, N.A. v Carcano, 106 A.D.3d 724, 965 N.Y.S.2d 516 [2d Dept 2013]. Where, as here, a plaintiffs standing to maintain a foreclosure action is placed in issue by a defendant, a plaintiff must prove its standing to be entitled to relief (see Wilmington Sav. Fund Socy., FSB v. Finn, 170 A.D.3d 1246, 1247, 96 N.Y.S.3d 627). A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361-362, 12 N.Y.S.3d 612, 34 N.E.3d 363).
''Pursuant to UCC 3-804 , which is intended to provide a method of recover}' on instruments that are lost, destroyed, or stolen, a plaintiff is required to submit 'due proof of [the plaintiffs] ownership, the facts which prevent [its] production of [the note,] and its terms' " (Deutsche Bank Natl. Trust Co. v. Anderson, 161 A.D.3d at 1044, 79 N.Y.S.3d 42, quoting UCC 3-804 ).
Here, although plaintiff was unable to produce the note, a copy of the note endorsed in blank submitted by the plaintiff provided sufficient evidence of its terms (see N.Y.Community Bank v. Jennings, 2015 N.Y. Slip Op. 31591(U), *4, 2015 WL 5062168 [Sup. Ct., N.Y. County]
Plaintiff also submits the lost note affidavit of Joel Pires, an employee of Ocwen Loan Servicing LLC, servicer for a purported prior assignee of the note, the nonparty MTGLQ Investors, L.P. According to Pires, on February 7, 2014, a good faith, diligent search for the original note was conducted and the original note could not be located, inter alia.
Further, plaintiff established that the August 2019 modification agreement created a direct contractual relationship between the plaintiff and defendant relating specifically to the subject promissory note and mortgage. By entering into the modification agreement and making monthly installment payments thereunder, the defendant expressly acknowledged the plaintiff's status as the holder of the subject note as of August 2019-well before the commencement of this action (See, (Veils v. Graffioli, 167 A..D. 3d 969 (2nd Dept. 2018). Therefore, contrary to the defendant's contention, the plaintiff established its standing to maintain this action (cf. Wells Fargo Bank, N.A. v. Walker, 141 A.D.3d 986, 988-989, 35 N.Y.S.3d 591; IRB-Brasil Resseguros S.A. v. Portobello Inti. Ltd., 84 A.D.3d 637, 637, 923 N.Y.S.2d 508: Wilmington Trust Co. v. Hurtado. 48 Misc.3d 1201 [(A), 2015 WL 3822249 [Sup. Ct., Suffolk County]).
Further, contrary to defendant's contention, plaintiff established its strict compliance with notice requirements of the mortgage agreement. Section 22 of the mortgage agreement, along with section 15 of the same agreement, require service of a specified default notice as a condition precedent to the acceleration of the mortgage loan (see Deutsche Bank Natl. Trust Co. v. Crimi, 184 A.D.3d 707, 709-711, 126N.Y.S.3d 197). Pursuant to section 15, the notice of default must be "mailed by first class mail or... actually delivered to [the defendants'] notice address if sent by other means." The mortgage agreement provides that the notice address is the address of the mortgaged property unless the plaintiff is notified of another address by the borrower.
Here, plaintiff submitted the affidavit of Priscilla Serrato, an employee of plaintiff s servicer. Serrato stated that the servicer utilizes Covius Document Services, LLC., f/k/a Walz Group, LLC (hereinafter "Covius") for the mailing of its notices of default and 90-day notices. As part of her employment, Serrato stated that she was familiar with the mailing practices and procedures and record keeping practices of Covis, and she described those procedures. She further avers that Covis' records are incorporated into the servicer's own records and routinely relied upon in the regular course of its business. Serrato states that upon review of the business records, attached as an Exhibit to her affidavit, "on May 12, 2022, Notices of Default were sent to (defendant) at the Mortgaged Premises by first-class mail and certified-mail. Further, attached to her affidavit is a copy of the Notice of Default, along with a "Transaction Report" generated by Covius, the entity that mailed the notices on behalf of the plaintiff. Accordingly, plaintiff established that it complied with the notice requirements of the mortgage agreement.
The defendant failed to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff s prima facie showing or in support of an affirmative defense and counterclaim (see Grogg v South Rd. Assoc., 74 A.D.3d 1021,907 N.Y.S.2d 22 [2d Dept 2010]; Washington Mut. Bank. F.A. v O 'Connor, 63 A.D.3d 832, 880 N.Y.S.2d 696 [2d Dept 2009]; JP Morgan Chase Bank. N.A. v Agnello, 62 A.D.3d 662, 878 N.Y.S.2d 397 [2d Dept 2009]). Even when considered in the light most favorable to the defendant the opposing papers are insufficient to raise any genuine question of fact requiring a trial on the merits of the plaintiffs claims for foreclosure and sale (see Bank of Smithtown v 219 Sagg Main. LLC, 107 A.D.3d 654, 968 N.Y.S.2d 95 [2d Dept 2013]; Emigrant Mtge. Co.. Inc. v Beckerman. 105 A.D.3d 895, 964 N.Y.S.2d 548 [2d Dept 2013]). Plaintiff submitted sufficient proof to establish, prima facie, that the affirmative defenses are subject to dismissal due to their unmeritorious nature (see Becher v Feller. 64 A.D.3d 672, 884 N.Y.S.2d 83 [2d Dept 2009]). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 [1975]; see also Argent Mtge. Co.. LLC v. Mentesana, 19 A.D.3d 1079, 915 N.Y.S.2d 59 [2d Dept 2010]).
Defendant's remaining contentions lack merit.
Accordingly, plaintiff s motion (#001) is granted, and the proposed order of reference, as modified by the Court, is being signed concurrently herewith.