Opinion
43186/2009
06-12-2015
Wilmington Trust Company as Successor to JPMorgan Chase Bank, NA as Trustee for the C-Bass Mortgage Loan Asset Backed Certificates, Series 2005-CB6, Plaintiff, v. Carmen Hurtado, Mortgage Electronic Registration Systems as Nominee for First Continental Mortgage and Investment Corp., and "JOHN DOE' and "JANE DOE" the last two names being fictitious said parties intended being tenants or occupants, if any, having or claiming an interest in, or lien upon the premises described in the complaint, Defendants.
LEOPOLD & ASSOCIATES Attys. for Plaintiff 80 Business Park Dr. - Ste. 110 Armonk, NY 10504 RONALD D. WEISS, PC Attys. For Defendant Hurtado 734 Walt Whitman Rd. - Ste. 203 Melville, NY 11747
LEOPOLD & ASSOCIATES
Attys. for Plaintiff
80 Business Park Dr. - Ste. 110
Armonk, NY 10504 RONALD D. WEISS, PC
Attys. For Defendant Hurtado
734 Walt Whitman Rd. - Ste. 203
Melville, NY 11747
Thomas F. Whelan, J.
Upon the following papers numbered 1 to14read on this motion by plaintiff for accelerated judgments and other relief and cross motion by defendant to dismiss or compel discovery; Notice of Motion/Order to Show Cause and supporting papers 1 - 4; Notice of Cross Motion and supporting papers7-8; Answering papers5-6 ; 9-10; Reply papers1-12; Other13-14 (affirmation); (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (#001) by the plaintiff for accelerated judgments on its complaint, substitution and/or deletion of certain party defendants and an order of reference is considered under CPLR 3212, 3215 and RPAPL § 1321 and is granted; and it is further
ORDERED that the cross motion (#002) by the defendant, obligor/mortgagor, Carmen Hurtado, for summary judgment dismissing the complaint or for an order compelling discovery is considered under CPLR 3212, 3211(a)(3), RPAPL § 1304 and CPLR 3124 and is denied.
The plaintiff commenced this action on October 29, 2009 to foreclose the lien of a June 15, 2005 mortgage given by defendant Hurtado to secure a mortgage note of the same date in favor of First Continental Mortgage and Investment Corp. Under the terms of the note, the principal amount of the mortgage loan was $341,600.00 and interest only payments at an adjustable rate were due for the first five years of the loan until July 1, 2010. The mortgage loan first went into default in 2008, and the sum of $362,604.46 was due as of September 1, 2008.
On November 5, 2008, the defendant obligor/mortgagor entered into a loan modification with the plaintiff to this action. Therein, defendant Hurtado acknowledged the outstanding indebtedness due as of September 1, 2008 was $362,604.46 and agreed to terminate all provisions for the payment of interest only. The plaintiff agreed to reduce the interest rate to a non-adjustable rate of 7% effective as of September 1, 2008. The first payment under the terms of the modification agreement was due on October 1, 2008. Defendant Hurtado was credited with having made such payment and with having made the payment due on November 1, 2008. However, no further payments were credited as none were made by her after that date. The plaintiff allegedly issued default notices and filed this foreclosure action in October of 2009.
In response to the plaintiff's service of the summons and complaint, defendant Hurtado appeared herein by answer. Therein, she asserts eighteen affirmative defenses, some of which challenge the plaintiff's standing to prosecute this action. In addition, one purported counterclaim is asserted regarding the defendant's payment of $3,638.00 in connection with the loan modification agreement dated November 5, 2008, although there is no demand for recovery of such amount or other affirmative relief.
By the instant motion, the plaintiff moves for an order: (1) awarding it summary judgment against the answering defendant; (2) identifying Marcus Hurtado as the unknown defendant John Doe and deleting as party defendants the remaining unknown defendants; and (3) appointing a referee to compute amounts due under the subject mortgage. Defendant Hurtado opposes in cross moving papers in which she claims that the plaintiff's motion is premature due to the absence of discovery. Although the cross motion is noticed only as one "to Allow Discovery" the supporting papers contain demands for "dismissal" of the complaint on defendant Hurtado's standing and bad faith negotiations defense and those premised upon state and federal statutory defenses aimed at curbing predatory lending practices. In addition, defendant Hurtado asserts an unpleaded defense which rests upon the plaintiff's purported failure to comply with the 90 day notice provisions set forth in RPAPL§ 1304. An alternate demand for an order compelling the plaintiff to provide responses to the defendant's outstanding discovery requests is also advanced in the cross moving papers. The cross motion is opposed by the plaintiff in papers which also serve as reply papers to its motion-in-chief.
First considered is the cross motion (#002) by defendant Hurtado since determination thereof may render the plaintiff's motion-in-chief, academic. Upon a reading of the cross moving papers, the court finds that defendant Hurtado's demands for dismissal of the complaint are, in effect, demands for summary judgment dismissing the complaint pursuant to CPLR 3212 on the grounds advanced, which fit within the purview of CPLR 3211(a)(3) and (5), as such demands were interposed following the joinder of issue and in response to the plaintiff's motion for summary judgment against defendant Hurtado and were treated as demands for summary judgment by the parties themselves.
It is now well established that the standing of a foreclosing plaintiff is not an element of its claim but, instead, is an affirmative defense which must be raised by a defendant in a timely pre-answer motion to dismiss or in an answer timely served or it is waived (see CPLR 3018[b]; CPLR 3211[e]; Wells Fargo Bank Minn ., N.A. v Mastropaolo , 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007]; see also Nationstar Mtge ., LLC v Catizone , 127 AD3d 1151, 2015 WL 1915479 [2d Dept 2015]; Wells Fargo v DeSouza , 126 AD3d 965, 3 NYS2d 619 [2d Dept 2015]; HSBC Bank USA , N.A. v Forde , 124 AD3d 840, 2 NYS3d 561 [2d Dept 2015]; One West Bank , FSB v DiPilato , 124 AD3d 735, 998 NYS2d 668 [2d Dept 2015]; Deutsche Bank Natl. Trust Co. v Islar ,122 AD3d 566, 996 NYS2d 130 [2d Dept 2014]; Plaza Equities , LLC v Lamberti , 118 AD3d 688, 986 NYS2d 843 [2d Dept 2014]; JP Morgan Mtge. Acquisition Corp. v Hayles , 113 AD3d 821, 979 NYS2d 620 [2d Dept 2014]; Deutsche Bank Trust Co. Americas v Cox , 110 AD3d 760, 973 NYS2d 662 [2d Dept 2013]). It is equally well established that a waived standing defense may not be resurrected by its assertion in opposition to a motion for summary judgment (see Wells Fargo Bank , N.A. v Erobobo , 127 AD3d1176, 2015 WL 1915161 [2d Dept 2015]; Bank of New York Mellon Trust Co. v McCall , 116 AD3d 993, 985 NYS2d 255 [2d Dept 2014]; Capital One , N.A. v Knollwood Prop. II , LLC , 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]; JPMorgan Chase Bank , N.A. v Bauer , 92 AD3d 641, 938 NYS2d 190 [2d Dept 2012]; US Bank Natl. Ass'n. v Denaro , 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; HSBC Bank , USA v Schwartz , 88 AD3d 961, 931 NYS2d 528 [2d Dept 2011]; U.S. Bank Natl. Ass'n v Eaddy , 79 AD3d 1022 , 914 NYS2d 901 [2010]). Nor may it be used to support an untimely motion to dismiss pursuant to CPLR 3211 ( see Southstar III , LLC v Enttienne , 120 AD3d 1332, 992 NYS2d 548 [2d Dept 2014]; JP Morgan Mtge. Acquisition Corp. v Hayles , 113 AD3d 821, supra; McGee v Dunn , 75 AD3d 624, 625, 906 NYS2d 74 [2d Dept 2010]; Countrywide Home Loans , Inc. v Delphonse , 64 AD3d 624, 883 NYS2d 135 [2d Dept 2009]), or an application to vacate a default under discretionary vacatur statutes such as CPLR 3012(d) or CPLR 5015(a)(1) ( see Wells Fargo Bank , Natl. Ass'n v Laviolette , ___ AD3d ____, 2015 WL 2457936 [2d Dept 2015]; U.S. Bank , N.A. v Bernabel , 125 AD3d 541, 5 NYS3d 372 [1st Dept 2015]; Citibank , N.A. v Swiatkowski , 98 AD3d 555, 949 NYS2d 635 [2d Dept 2012]; CitiMortgage , Inc. v Rosenthal , 88 AD3d 759, 931 NYS2d 638 [2d Dept 2011]; HSBC Bank , USA v Dammond , 59 AD3d 679, 875 NYS2d 490 [2d Dept 2009]).
Here, the defense of standing was raised in several of the affirmative defenses asserted in the answer served by defendant Hurtado who thereby avoided the waiver issue that arises upon a failure to assert the defenses in a timely pre-answer motion or answer duly served. However, the defense of standing may be waived by a mortgagor who negotiates and executes a loan modification agreement with the foreclosing plaintiff to whom the subject mortgage note and mortgage were transferred prior to the commencement of a foreclosure action. The execution of such agreement, coupled with the defendant's payment of the monthly amounts due under the terms of the modification agreement, has been held to effect waiver of all defenses and claims resting on the plaintiff's purported lack of ownership in the note and mortgage as modified by the plaintiff or the unenforceability of such note and mortgage under other theories (see IRB-Brasil Resseguros S.A. v Portobello Intern. Ltd., 84 AD3d 637, 923 NYS2d 508 [1st Dept 2011]; see also Confidential Lending , LLC v Nurse , 120 AD3d 739, 992 NYS2d 77 [2d Dept 2014]; Moweta v Citywide Home Improvements of Queens , Inc ., 267 AD2d 438, 700 NYS2d 845 [2d Dept 1999]; Verela v Citrus Lake Dev ., Inc ., 53 AD3d 574, 862 NYS2d 96 [2d Dept 2008]; Paramount Ins. Co. v Brown , 205 AD2d 464, 613 NYS2d 910 [1st Dept 1994]). The court finds that the standing defense asserted by defendant Hurtado may not be successfully invoked against the plaintiff with whom defendant Hurtado successfully negotiated a loan modification agreement in November of 2008 and made payments thereon in accordance with the modified loan terms prior to defaulting thereunder.
The court further finds that defendant Hurtado's asserted defense that violations of state banking and other statutes and violations of federal statutes such as the Real Estate Settlement Act, the Home Equity Protection Act and the Federal Truth in Lending Act warrant dismissal of this action to be without merit. Distilled to their essence, these claims rest upon allegations that, at the time of origination, the loan was unaffordable and the lender failed to abide by due diligence and other unidentified requirements allegedly imposed upon the original lender by the above listed statutes. However, the cross moving papers neither detail nor demonstrate actionable conduct on the part of the plaintiff or its predecessor-in-interest under applicable provisions of any of the statutes which the defendant claims were violated. Absent some evidence of any violation, the court is left with general principles of law that govern the relationships between a lender and a borrower including the precept that a lender has no fiduciary or other heightened duties owing to a borrower in transactions arising from the advancement of credit ( see Baumann v Hanover Community Bank , 100 AD3d 814, 957 NYS2d 111 [2d Dept 2012]; Rakylar v Washington Mut. Bank , 51 AD3d 995, 858 NYS2d 759 [2d Dept 2008]; Standard Fed. Bank v Healy , 7 AD3d 610, 777 NYS2d 499 [2d Dept 2004] ). "The fact that the plaintiff sought and received a loan [that] he [allegedly] could not afford does not mean that he can now proceed against the party that made his [purported] mistake possible" ( Patterson v Somerset Inv. Corp ., 96 AD3d 817, 946 NYS2d 217 [2d Dept 2012]; see also Aydin v Opteum Fin. Serv ., LLC , 2014 WL 2612516 [EDNY 2014] ). Moreover, evidence that the plaintiff's decision to lend money to a mortgagor was unwise for any reason is insufficient by itself to raise a triable issue of fact as to whether the plaintiff engaged in fraudulent or unconscionable conduct so as to defeat a motion for summary judgment in a foreclosure action ( see Argent Mtge. Co ., LLC v Mentesana , 79 AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). This is especially so where, as here, the defendant accepted the benefits of the contract for a significant length of time but after defaulting, urges a defense based upon the plaintiff's purportedly wrongful conduct ( see Feinstein v Levy , 121 AD2d 499, 503 NYS2d 821 [1st Dept 1986]; Ricca v Ricca 57 AD3d 868, 869, 870 NYS2d 419 [2d Dept 2008]).
Also unavailing is the defendant's claim that the plaintiff failed to engage in good faith negotiations aimed at securing a further loan modification and that such failure warrants a dismissal of the complaint or, at the very least, a denial of the plaintiff's motion. It is now clear that a lender is not required to modify a loan at a CLR 3408 conference but instead, is only required to negotiate in good faith (see Flagstar Bank , FSB v Walker 112 AD3d 885, 977 NYS2d 359 [2d Dept 2013]; Wells Fargo Bank , N.A. v Meyers , 108 AD3d 9, 23, 966 NYS2d 108 [2d Dept 2013] ("it is obvious that the parties cannot be forced to reach an agreement, CPLR 3408 does not purport to require them to, and the courts may not endeavor to force an agreement upon the parties"; see also Wells Fargo Bank , N.A. v Van Dyke , 101 AD3d 638, 958 NYS2d 331 [1st Dept 2012]). Moreover, "[n]othing in CPLR 3408 requires plaintiff to make the exact offer desired by [the] defendant[ ], and [the] plaintiff's failure to make that offer cannot be interpreted as a lack of good faith" ( Bank of America , Natl. Ass'n v Lucido , ___ AD3d___, 2014 WL 552996 [2d Dept 2014], quoting Wells Fargo Bank , N.A. v Van Dyke , 101 AD3d 638, 638, supra).
The reason underlying the forgoing rules are derived from well established principles of contract law which have long provided that this court nor any others may not direct a party to a contract to rewrite it or to enter into new terms or other agreements, since such a direction would clearly violate the Contract Clause of the United States Constitution (see Wells Fargo Bank , N.A. v Meyers , 108 AD3d 9, 966 NYS2d 108 [2d Dept 2013]; see also PHH Mtge. Corp. v Hepburn , ___ AD3d___, 2015 WL 2076355 [2d Dept 2015]; Citibank , N.A. v Barclay , 124 AD3d 174, 999 NYS2d 375 [1st Dept 2014]; Flagstar Bank , FSB v Walker , 112 AD3d 885, supra; Wells Fargo Bank , N.A. v Van Dyke , 101 AD3d 638, supra). There is thus no duty on the part of a lender or its successor-in-interest to modify the terms of a loan or to direct it to change the obligor by way of assumption. Instead, there is a statutorily imposed duty imposed upon the plaintiff and the borrower in mortgage foreclosure actions to negotiate in good faith a possible settlement aimed at keeping the borrower in his or her home (see CPLR 3408; Federal Natl. Mtge. Ass'n v Cappelli , 120 AD3d 621, 990 NYS2d 856 [2d Dept. 2014]; U.S. Bank , N.A. v Sarmiento , 121 AD3d 187, 991 NYS2d 68 [2d Dept. 2014]; Bank of New York v Castillo , 120 AD3d 598, 991 NYS2d 446 [2d Dept 2014]; Flagstar Bank , FSB v Titus , 120 AD3d 469, 991 NYS2d 110 [2d Dept 2014]).
Even if a lack of good faith on the part of a foreclosing plaintiff is discerned by the court upon application of the defendant and found to exist after notice and an opportunity to be heard is extended to the plaintiff, such bad faith does not give rise to a defense to the foreclosure action or other "basis for preventing the plaintiff from enforcing the terms of its mortgage" ( Citibank , N.A. v Van Brunt Props ., LLC , 95 AD3d 1158, 1159, 945 NYS2d 330 [2d Dept 2012]). Instead, a lack of good faith constitutes conduct for which the court may impose some form of sanction (see Wells Fargo Bank , N.A. v Meyers , 108 AD3d 9, supra), including a toll on interest otherwise collectable by the plaintiff under the terms of the loan documents (see U.S. Bank Natl. Ass'n v Smith , 123 AD3d 914, 999 NYS2d 468 [2d Dept 2014]). The court thus rejects all defenses and claims for affirmative relief that are premised upon purported failings on the part of the plaintiff to comply with requirements imposed by CPLR 3404.
The court further rejects defendant Hurtado's claim that the plaintiff's failure to comply with the 90 day default notice provisions set forth in RPAPL § 1304 warrants a dismissal of the complaint. Pursuant to this statute, a lender is required to serve the defendant with a proper statutory notice of default and advisement of assistance or consequences at least 90 days before commencing a foreclosure action. From September 1, 2008 through January 14, 2010, this statute was applicable to foreclosure actions commenced during that time period which involved "subprime," "high-cost," or "non-traditional" loans (see L. 2008, ch. 472, § 2; cf. L. 2009, ch. 507, § 1—a; Emigrant Mtge. Co ., Inc. v Persad , 117 AD3d 676, 985 NYS2d 608 [2d Dept 2014]). For actions commenced on or after January 14, 2010, the statute applies to most borrower occupied residential home loans irrespective of their status as "subprime," "high-cost," or "non-traditional".
Under the version of RPAPL § 1304 in effect at the time of the commencement of this action in October of 2009, the pre-commencement RPAPL §1304 notice requirements were limited to actions involving "subprime," "high-cost," or "non-traditional" loans. While the loan at issue here was, at the time of its origination in 2006 a non-traditional loan, it was modified in 2008 into a conventional loan and it remained as such at the time of the commencement of this action. The court thus finds that the provisions of RPAPL § 1304 are inapplicable to this action and that a failure, if any, on the part of the plaintiff to comply therewith does not constitute a defense to the plaintiff's claims for foreclosure and sale.
Those portions of the defendant's cross motion (#002) wherein she seeks summary judgment dismissing the plaintiff's complaint on the grounds advanced in her cross moving papers are denied for the reasons set forth above.
Also denied are those portions of the defendant's cross motion wherein she seeks a denial of the plaintiff's motion as premature due to the absence of discovery and an order directing the plaintiff to provide discovery. CPLR 3212(f) provides that "should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just". Appellate case authorities have long instructed that to avail oneself of the safe harbor this rule affords, the claimant must "offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff" ( Martinez v Kreychmar , 84 AD3d 1037, 923 NYS2d 648 [2d Dept 2011]; see Garcia v Lenox Hill Florist III , Inc ., 120 AD3d 1296, 993 NYS2d 86 [2d Dept 2014]; KeyBank Natl. Ass'n v Chapman Steamer Collective , LLC , 117 AD3d 991, 986 NYS2d 598 [2d Dept 2014]; Seaway Capital Corp. v 500 Sterling Realty Corp ., 94 AD3d 856, 941 NYS2d 871 [2d Dept 2012]). In addition, the party asserting the rule must demonstrate that he or she made reasonable attempts to discover facts which would give rise to a genuine triable issue of fact on matters material to those at issue ( see KeyBank Natl. Ass'n v Chapman Steamer Collective , LLC , 117 AD3d 991, supra; Swedbank , AB v Hate Ave. Borrower , LLC , 89 AD3d 922, 932 NYS2d 540 [2d Dept 2011]; Zheng v Evans , 63 AD3d 791, 881 NYS2d 461 [2d Dept 2009]).
The defendant here failed to demonstrate how further discovery may reveal or lead to relevant evidence or that facts essential to opposing the plaintiff's motion were within the exclusive knowledge and control of the plaintiff (see KeyBank Natl. Ass'n v Chapman Steamer Collective , LLC , 117 AD3d 991, supra). In addition, there was no showing that the defendant made reasonable attempts to discover facts which would give rise to a genuine triable issue of fact on matters material to those at issue (see KeyBank Natl. Ass'n v Chapman Steamer Collective , LLC , 117 AD3d 991, supra). All relief demanded by the defendant in her cross moving papers is thus denied.
Left for consideration is the plaintiff's motion-in-chief (#001) in which it seeks summary judgment against the sole answering defendant, Hurtado, default judgments against all other defendants served with process, the identification and deletion of unknown defendants and an order appointing a referee to compute. For the reasons stated below, the motion is granted.
The moving papers established the plaintiff's entitlement to summary judgment dismissing the affirmative defenses and one counterclaim asserted in the answer of defendant Hurtado as such defenses were either waived or shown to be lacking in merit for the reasons set forth above. The moving papers further demonstrated a prima facie entitlement on the part of the plaintiff to an award of summary judgment on its complaint to the extent it asserts claims against the answering defendant as such papers included copies of the mortgage, the unpaid note and due evidence of a default under the terms thereof (see CPLR 3212; RPAPL § 1321; Nationstar Mtge ., LLC v Catizone ,127 AD3d 1151, 2015 WL 1915479 [2d Dept 2015], supra; Wells Fargo v DeSouza , 126 AD3d 965, supra; HSBC Bank USA , N.A. v Forde , 124 AD3d 840, supra; One West Bank , FSB v DiPilato , 124 AD3d 735, supra; Midfirst Bank v Agho , 121 AD3d 343, 991 NYS2d 623 [2d Dept 2014]).
It was thus incumbent upon the answering defendant to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of the affirmative defenses asserted in her answer or otherwise available to her (see Nationstar Mtge ., LLC v Silveri , 126 AD3d 864, 2015 WL 1212321 [2d Dept 2015]; Flagstar Bank v Bellafiore , 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012]; Grogg Assocs. v South Rd. Assocs., 74 AD3d 1021 907 NYS2d 22 [2d Dept 2010]; Wells Fargo Bank v Karla , 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]). As outlined above the opposing papers submitted by answering defendant Hurtado did not raise any genuine questions of fact as to such defendant's possession of any bona fide defenses to the plaintiff' claims.
The court thus finds that the plaintiff is entitled to summary judgment on its complaint and dismissal of the affirmative defenses and counterclaim set forth in the joint answer of defendant Hurtado. Those portions of this motion wherein the plaintiff seeks such relief are thus granted.
Those portions of the instant motion wherein the plaintiff seeks an order substituting Marcus Hurtado as the unknown defendant John Doe and deleting as party defendants the remaining unknown defendants listed in the caption and an amendment of the caption to reflect same are granted.
The moving papers further established the default in answering on the part of the newly identified defendant and the corporate defendants named in the caption, none whom served answers to the plaintiff's complaint. Accordingly, the defaults of all such defendants are hereby fixed and determined. Since the plaintiff has been awarded summary judgment against the sole answering defendant and has established a default in answering by the remaining defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see RPAPL § 1321; Bank of East Asia , Ltd. v Smith , 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]; Vermont Fed. Bank v Chase , 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; LaSalle Bank , NA v Pace , 31 Misc 3d 627, 919 NYS2d 794 [Sup. Ct. Suffolk County 2011], aff'd, 100 AD3d 970, 955 NYS2d 161 [2d Dept 2012]).
The proposed order of reference, as modified by the court to reflect the terms of this memo decision and order, has been marked signed.
Dated: June 12, 2015___________________________________
THOMAS F. WHELAN, J.S.C.