Opinion
37828-11
06-03-2015
Bank of America, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff, v. Glenn Rodomista, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, SARI RODOMISTA, HOME CONSULTANTS, INC., "JOHN DOE 1 to JOHN DOE 25", said names being fictitious, the persons or parties intended being the persons, parties, corporations or entities, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.
DRUCKMAN LAW GROUP PLLC Attorneys for Plaintiff 242 Drexel Avenue, Suite 2 Westbury, NY 11590 FRED M. SCHWARTZ, ESQ. Attorney for Defendants Glenn Rodomista Home Consultants, Inc. 317 Middle Country Road, Suite 5 Smithtown, NY 11787
DRUCKMAN LAW GROUP PLLC
Attorneys for Plaintiff
242 Drexel Avenue, Suite 2
Westbury, NY 11590
FRED M. SCHWARTZ, ESQ.
Attorney for Defendants
Glenn Rodomista Home Consultants, Inc.
317 Middle Country Road, Suite 5
Smithtown, NY 11787
James C. Hudson, J.
Upon the following papers numbered 1 to26read on this motion for summary judgment and this cross motion for dismissal of the complaint; Notice of Motion/Order to Show Cause and supporting papers 1 - 10 ; Notice of Cross Motion and supporting papers 11 - 16 ; Answering Affidavits and supporting papers 17 - 22 ; Replying Affidavits and supporting papers 23 - 25 ; Other Stipulation; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED , that this motion (001) by the Plaintiff for, inter alia, an order awarding summary judgment in its favor and against the Defendants Glenn Rodomista and Home Consultants, Inc., fixing the defaults of the non-answering Defendants, appointing a referee and amending the caption is determined as set forth below; and it is
ORDERED that this cross motion (002) by the Defendants Glenn Rodomista and Home Consultants, Inc. for, among other things, an order denying the Plaintiff's motion for summary judgment, dismissing the complaint insofar as asserted against him pursuant to CPLR 3211 (a) (3) and (a) (7); or, in the alternative, pursuant to CPLR 3126 compelling the Plaintiff to respond to his previously served discovery demands; and/or precluding the Plaintiff from offering evidence at trial in support of the complaint; and scheduling another foreclosure settlement conference is denied in its entirety; and it is
ORDERED that the Plaintiff is directed to file proof of filing of an additional or a successive notice of pendency with the proposed judgment of foreclosure (see, CPLR 6513; 6516[a]; Aames Funding Corp. v Houston , 57 AD3d 808, 872 NYS2d 134 [2d Dept 2008]; EMC Mtge. Corp. v Stewart , 2 AD3d 772, 769 NYS2d 408 [2d Dept 2003]; Horowitz v Griggs , 2 AD3d 404, 767 NYS2d 860 [2d Dept 2003]); and it is
ORDERED that the Plaintiff is directed to supply a properly executed uniform form certificate of acknowledgment and a certificate of conformity for the affidavit of the Plaintiff's representative submitted in support of the motion, at the time of the hearing or trial of this action (see, CPLR 2001; U.S. Bank N.A. v Dellarmo , 94 AD3d 746, 942 NYS2d 122 [2d Dept 2012]); and it is
ORDERED that counsel are directed to appear at a compliance conference scheduled for Wednesday , July 29 , 2015 , at 9:30 a.m., at New York State Supreme Court located at One Court, Riverhead, Part XL; and it is
ORDERED that the Plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of this Court; 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 and not waived further notice pursuant to CPLR 2103 (b) (1), (2) or (3) within thirty (30) days of the date herein, 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 known as 26 Richard Avenue, Islip Terrace, NY 11752 ("the property"). On August 29, 2006, the Defendant Glenn Rodomista ("Rodomista") executed a note in favor of Countrywide Bank, N.A. ("the lender") in the principal sum of $294,000.00. To secure said note, Rodomista gave the lender a mortgage also dated August 29, 2006 on the property. The mortgage indicates that Mortgage Electronic Registration Systems, Inc. ("MERS") was acting solely as a nominee for the lender and its successors and assigns and that, for the purposes of recording the mortgage, MERS was the mortgagee of record. By way of an undated endorsement, the note was allegedly initially transferred to Countrywide Home Loans, Inc. ("CHL"). By way of a second undated endorsement the note was allegedly transferred to the Plaintiff, Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP formerly known as Countrywide Home Loans Servicing, LP. By an assignment of the mortgage dated November 14, 2011, MERS as nominee for the lender purportedly transferred the mortgage to the Plaintiff. Thereafter, the assignment was duly recorded in the Suffolk County Clerk's Office on December 12, 2011.
Rodomista allegedly defaulted on the note and mortgage by failing to make the monthly payment of principal and interest due on January 1, 2011, and each month thereafter. After Rodomista allegedly failed to cure said default, the Plaintiff commenced the instant action by the filing of a lis pendens, summons and verified complaint on December 9, 2011.
In response to the complaint, Rodomista and the Defendant Home Consultants, Inc. (collectively "the Rodomista Defendants") interposed a verified answer sworn to on January 13, 2012. By their answer, the Rodomista Defendants generally deny all of the allegations set forth in the complaint, and assert thirteen affirmative defenses, including, inter alia, the Plaintiff's lack of standing; a void assignment; the failure to state a cause of action; the failure to properly serve notice of the alleged default prior to commencement; a defective default notice; and the failure to comply with the provisions of RPAPL § 1304. The remaining Defendants have neither answered, nor appeared herein, and thus are in default.
The Plaintiff now moves for, inter alia, an order: (1) awarding summary judgment in its favor and against the Rodomista Defendants, striking their answer and dismissing the affirmative defenses set forth therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering 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.
In support of the motion, the Plaintiff submits, among other things, the note, mortgage and assignments of mortgage; a 1-4 Family Rider (Assignment of Rents); the pleadings; a Clerk's Judgment entered against Rodomista on December 3, 2010; an affirmation from counsel; an affidavit from Mark McCloskey, an Assistant Vice President of Specialized Loan Servicing LLC, as attorney in fact for Washington Mutual Mortgage Pass-Through Certificates WMALT Series 2007-OA1 Trust, U.S. Bank National Association, as Trustee, successor in interest to Bank of America, National Association, as Trustee, successor by merger to LaSalle Bank National Association, as Trustee; affidavits of service; a 30-day default notice; a copy of the 90-day notice pursuant to RPAPL 1304 printed in English; a 90-day notice pursuant to RPAPL 1304 printed in Spanish; a "Proof of Filing Statement" from the New York State Banking Department pursuant to RPAPL § 1306; and a foreclosure affirmation pursuant to AO 431/11 executed on October 3, 2012.
Turning to the loan documents, the face of the note specifies the property address and contains two undated endorsements without recourse. The first endorsement was allegedly made by an officer of the lender payable to the order of CHL. The second endorsement in blank was allegedly made by an officer of CHL. The mortgage, at section "B" specifies that Rodomista's address at the time of execution of the loan documents was 230 Terryville Road, Port Jefferson Station, NY 11776 (the Port Jefferson residence). Section "F" of the mortgage, provides that the property was improved by a one or two family residence or dwelling only. On an unnumbered page attached to the mortgage, entitled "LEGAL DESCRIPTION EXHIBIT A", Rodomista's contact information includes, inter alia, the address of the subject mortgaged property. Section "18" of the mortgage provides, in part, and in sum and substance that the lender may require immediate payment in full of all sums secured by the security instrument if " all or any part of the [p]roperty, or if any right in the [p]roperty, is sold or transferred without the lender's prior written permission."
The 1-4 Family Rider (Assignment of Rents), which is dated August 29, 2006 and executed by Rodomista, provides, inter alia, that the requirement at section "6" in the mortgage concerning Rodomista's occupancy was deleted (Rider ¶ "F"), and that Rodomista "shall not seek, agree to or make a change in the use of the [p]roperty or its zoning classification, unless the [l]ender has agreed in writing to the change" (Rider ¶"B"). Parenthetically, the rider also provides that, upon the [l]ender's request after default, "[Rodomista] shall assign to [l]ender all leases of the [p]roperty and all security deposits made in connection with leases of the property" (Rider ¶ "G").
The summons filed in this action includes, among other things, the requisite warning required by RPAPL § 1320, which appears to be in the specified type-size, and is, in all other respects, in compliance with the statute. The "HELP FOR HOMEOWNER'S IN FORECLOSURE" notice pursuant to RPAPL §1303, submitted as Exhibit "G," is blue in color, contains all the requisite language required by RPAPL § 1303 and appears to be in compliance with the statute.
In the complaint, the Plaintiff alleges that the note and mortgage were transferred to it by assignment dated November 14, 2011; and that it is the owner and/or holder of the note and mortgage or has been delegated the authority to institute a mortgage foreclosure action by the owner and/or holder of the note and mortgage. The Plaintiff also alleges, in sum and substance, that it has complied with all the 90-day notice provisions of section 1304 of the Real Property Actions and Proceedings Law, and that a settlement conference pursuant to CPLR 3408 was required because this action is one to foreclose on a residential loan as such term is defined in the statute (see, RPAPL [5] [a]). Additionally, the complaint contains an allegation that the Plaintiff joined the Defendant Home Consultants Inc. as a party Defendant because it is the record owner by virtue of a deed recorded on October 31, 2008 in Liber D00012570 at page 383. The Plaintiff further alleges in the complaint that Sari Rodomista is joined as a party Defendant for the purpose of cutting off possible judgments which may be liens against the property. In support of this allegation, the Plaintiff has attached to the complaint a Clerk's Judgment entered on December 3, 2010 in the action entitled Sari Rodomista v Glenn Rodomista , filed under Suffolk County Index No.: 16647-09. The Judgment contains a recitation that Rodomista was residing at the Port Jefferson residence.
The affidavit of service upon Rodomista reflects that he was served by personal delivery of the summons and complaint, with notices pursuant to RPAPL §§ 1303 and 1320, to him at the Port Jefferson residence on January 20, 2012. The affidavit of service upon "JOHN DOE # 1 also known as Susan Thomas" reflects that the alleged tenant was served by personal delivery of the summons and the complaint to her at the property on December 16, 2011.
In her affirmation, counsel avers that the Plaintiff has complied with the notice requirements of section 1302, 1303, 1304, 1306 and 1320 as well as section 6-l and 6-m of the Banking Law. Counsel further avers that a settlement conference was scheduled for January 10, 2013, but that Rodomista was not eligible for a further conference because it was determined that the property was not Rodomista's primary address.
In his affidavit in support of the motion, Mark McCloskey alleges, inter alia, that a notice of default dated February 16, 2011 was mailed to Rodomista at the subject property. With respect to the 90-day notice, McCloskey alleges that the Plaintiff completed "Step 1" and "Step 2" filings with the New York State Banking Department. He also alleges that the Plaintiff was in possession of the original endorsed note and mortgage at the time of commencement, and that it continues to remain in possession of the note, directly or through an agent. McCloskey further alleges that the Plaintiff is the assignee of the security instrument.
The "Proof of Filing Statement" from the New York State Banking Department pursuant to RPAPL § 1306, submitted by the Plaintiff indicates includes, inter alia, "Bank of America" as the filer and Rodomista as the borrower. The document also includes the following information: a reference to the loan dated August 26, 2006, the property; Rodomista's primary residence address, the Port Jefferson property; "Step 1" and "Step 2" mailing dates (May 9, 2011 and December 9, 2011); "Step 1" and "Step 2" filing dates (May 9, 2011 and June 13, 2014); and tracking number NYS2338541. The document further includes a statement that there was no modification of the 30 year, payment option adjustable rate loan, which is a first lien against the property.
The Rodomista Defendants oppose the motion and cross move for, among other things, an order: (1) denying the Plaintiff's motion for summary judgment; (2) dismissing the complaint insofar as asserted against them: (a) pursuant to CPLR 3211 (a) (3) on the grounds that the Plaintiff lacked standing and/or the legal capacity to commence this action; (b) pursuant to CPLR 3211(a)(7) on the grounds that the Plaintiff's complaint fails to state a cause of action against him; and (c), ostensibly, pursuant to CPLR 3211 (a) (1) and/or CPLR 3211 (a) (5) upon the grounds that the Plaintiff failed to furnish sufficient proof of compliance with the default notice provisions contained in the mortgage and the notice requirements pursuant to RPAPL§ 1304; or, (3) in the alternative, pursuant to CPLR 3126 compelling the Plaintiff to respond to their previously served discovery demands, and/or precluding the Plaintiff from offering evidence at trial in support of the complaint; and (4) restoring this action for another foreclosure settlement conference to an IAS Part.
In support of their cross motion and in opposition to the Plaintiff's motion, the Rodomista Defendants submit an affirmation from counsel and an affidavit from Rodomista. In their papers, the Rodomista Defendants re-assert the following pleaded affirmative defenses: the lack of capacity to sue and/or standing; the failure to state a cause of action; and improper service of the 30-day and 90-day notices. In his affidavit, Rodomista denies receipt of notice of default by either regular or certified mail. He also alleges that he purchased the property for investment purposes and that the Plaintiff's predecessor was "well aware that [he] would not be residing in the premises." He further alleges that "the mortgage documents set forth [his] actual residence for investment purposes." In his affirmation, counsel argues that the cross motion dismissing the complaint should be granted on the grounds that the Plaintiff failed to demonstrate its standing, compliance with the 30-day notice requirement set forth in the mortgage, and compliance with the 90-day notice requirement of RPAPL § 1304. He also asserts, among other things, that the Plaintiff's motion should be denied because the Plaintiff allegedly failed to respond to certain portions of the Rodomista Defendants' discovery demands. Counsel further requests that this matter be restored for an additional settlement conference of the type contemplated by CPLR 3408.
The Court will first address the cross motion by the Rodomista Defendants because that determination may render the Plaintiff's motion-in-chief academic. In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the Plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( Breytman v Olinville Realty , LLC , 54 AD3d 703, 704, 864 NYS2d 70 [2d Dept 2008]; Turkat v Lalezarian Developers , Inc ., 52 AD3d 595, 860 NYS2d 153 [2d Dept 2008]). Such a motion should be granted only where, viewing the allegations as true, the Plaintiff cannot establish a cause of action ( Asgahar v Tringali , 18 AD3d 408, 409, 795 NYS2d 68 [2d Dept 2005]). It is well-settled, however, that bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action ( Doria v Masucci , 230 AD2d 764, 764, 646 NYS2d 363 [2d Dept 1996]). When the moving party offers evidentiary material, the court is required to determine "whether the proponent of the pleading has a cause of action, not whether [he or] she has stated one" ( Meyer v Guinta , 262 AD2d 463, 464, 692 NYS2d 159 [2d Dept 1999]).
A Plaintiff in a mortgage foreclosure action establishes a prima facie case for summary judgment by submission of the mortgage, the note, bond or obligation, and evidence of default (see, Valley Natl. Bank v Deutsch , 88 AD3d 691, 930 NYS2d 477 [2d Dept 2011]; Wells Fargo Bank v Das Karla , 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]; Washington Mut. Bank , F.A. v O'Connor , 63 AD3d 832, 880 NYS2d 696 [2d Dept 2009]). The burden then shifts to the Defendant to demonstrate "the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the Plaintiff" ( Capstone Bus. Credit , LLC v Imperia Family Realty , LLC , 70 AD3d 882, 883, 895 NYS2d 199 [2d Dept 2010], quoting Mahopac Natl. Bank v Baisley , 244 AD2d 466, 467, 644 NYS2d 345 [2d Dept 1997]).
At the outset, the cross motion is defective to the extent that it does not fully set forth the specific rules upon which each branch therein is predicated and to the extent the same is not referred to in counsel's affirmation in support (see, CPLR 2214 [a]). More importantly, the branch of the Rodomista Defendants' motion for dismissal pursuant to CPLR 3211(a)(3) and the branch of the motion for dismissal, ostensibly, pursuant to CPLR 3211 (a) (1) were not timely interposed because they were made after joinder of issue and service of the answer cut off their right to make a CPLR 3211 motion to dismiss on these grounds (see generally, CPLR 3211[e]; see also, CPLR 3018 [b]). It is well-settled that motions under CPLR 3211 (a) are to be made at any time before service of the responsive pleading ( see, CPLR 3211 [e]; Hendrickson v Philbor Motors , Inc . , 102 AD3d 251, 955 NYS2d 384 [2d Dept 2012]; Cremosa Food Co ., LLC v Elwood Catering , LLC , 2013 NY Misc. LEXIS 4746, 2013 WL 5761461, 2013 NY Slip Op 32556 [U] [Sup Ct, Suffolk County 2013]; U.S. Bank , N.A. v Arias , 2012 NY Misc LEXIS 3621, 2012 WL 3135064, 2012 NY Slip Op 31999 [U] [Sup Ct, Queens County 2012]; see also, EMC Mtge. Corp. v Gass , 114 AD3d 1074, 981 NYS2d 814 [3d Dept 2014]; Hertz. Corp. v Luken , 126 AD2d 446, 510 NYS2d 590 [1st Dept 1987]). The Rodomista Defendants' post-answer demand for dismissal of the complaint, to the extent it is premised upon the alleged lack of capacity to sue/standing grounds embraced by CPLR 3211 (a) (3) and the grounds embraced by CPLR 3211 (a) (1) and/or CPLR 3211 (a) (5), is untimely by nearly two years and will thus not be considered as an independent basis for dismissal.
Even though CPLR 3211 (c) empowers the court to treat a motion to dismiss as a motion for summary judgment, in this case, conversion is inappropriate because, inter alia, this action does not exclusively involve issues of law which were fully appreciated and argued by the parties, and since notice has not been provided to the parties (see, Moutafis v Osborne , 18 AD3d 723, 795 NYS2d 716 [2d Dept 2005]; Matter of Weiss v N. Shore Towers Apts ., Inc ., 300 AD2d 596, 751 NYS2d 868 [2d Dept 2002]; Bennett v Hucke , 64 AD3d 529, 881 NYS2d 335 [2d Dept 2009]; Bowes v Healy , 40 AD3d 566, 833 NYS2d 400 [2d Dept 2007]). While the lack of legal capacity/standing defense is preserved in the answer, adjudication of such defense must be made at trial or its procedural equivalent, namely a motion for summary judgment (see, Diaz v DiGiulio , 29 AD3d 623, 816 NYS2d 125 [2d Dept 2006]; US Bank v Reed , 38 Misc 3d 1206 [A], 967 NYS2d 870[Sup Ct, Suffolk County 2013]). In any event, even if timely made, Rodomista's blanket denials of receipt of the 30-day and 90-day default notices are insufficient to warrant a dismissal of the complaint under the circumstances presented herein (see, Grogg v South Rd. Assoc ., L.P., 74 AD3d 1021, 907 NYS2d 22 [2d Dept 2010]; see also, Deutsche Bank Trust Co. Am. v Shields , 116 AD3d 653, 983 NYS2d 286 [2d Dept 2014]).
The second branch of the cross motion pursuant to CPLR 3211 (a) (7), which is premised on the grounds that the complaint fails to state a cause of action against the Defendant mortgagor, is arguably not subject to waiver because the provisions of CPLR 3211 (e) state that it "may be made at any subsequent time" (see, Hense v Baxter , 79 AD3d 814, 914 NYS2d 200 [2d Dept 2010]). In this case, however, the first branch of the motion pursuant to CPLR 3211 (a) (7), which is entirely unsupported, constitutes nothing more than a recasting of the Defendant mortgagor's lack of capacity/standing defense, which is untimely as a ground for dismissal (see, CPLR 3211 [e]; JPMorgan Chase Bank , NA v Henry , 2014 NY Misc LEXIS 5048, 2014 WL 6775808, 2014 NY Slip Op 32980 [U] [Sup Ct, Suffolk County 2014]; see also, Bank of Am ., N.A. v Simon , 47 Misc 3d 1202 [A], 2015 NY Slip Op 50363 [U] [Sup Ct, Suffolk County 2015]).
In any event, contrary to the arguments of the Rodomista Defendants, the complaint adequately pleads a cause of action for foreclosure and sale of the mortgage. The factual allegations asserted in the complaint state a legally cognizable claim for the foreclosure and sale of the subject property as against the Defendant mortgagor, because the same set forth the existence of, and Rodomista's execution and delivery of the note and mortgage, and the continuing default in payment thereunder (see, RPAPL § 1321; Wells Fargo Bank , N.A. v Cohen , 80 AD3d 753, 915 NYS2d 569 [2d Dept 2011]). Further, the Plaintiff has alleged facts, which if proven, would demonstrate standing (see, U.S. Bank , N.A. v Collymore , 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]). More specifically, in the complaint, the Plaintiff alleges that it is the owner and/or holder of the subject note and mortgage, or has been delegated the authority to institute a mortgage foreclosure action by the owner and/or holder of the subject mortgage and note. Additionally, the allegations by the Plaintiff's representative concerning the particulars of this action and the Plaintiff's possession of the note, contained in the affidavit in support, augment the complaint and clearly state a cause of action for foreclosure and sale. The cross motion is thus denied in its entirety, and the third affirmative defense is dismissed.
The Court next turns to the Plaintiff's motion for summary judgment. When moving to dismiss an affirmative defense, the Plaintiff bears the burden of demonstrating that the affirmative defense is "without merit as a matter of law" (see, CPLR 3211 [b]; Vita v New York Waste Servs ., LLC , 34 AD3d 559, 559, 824 NYS2d 177 [2d Dept 2006]). In reviewing a motion to dismiss an affirmative defense, this court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference (see, Fireman's Fund Ins. Co. v Farrell , 57 AD3d 721, 869 NYS2d 597 [2d Dept 2008]). Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed (see, id.). "A defense not properly stated or one that has no merit, however, is subject to dismissal pursuant to CPLR 3211 (b). It, thus, may be the target of a motion for summary judgment by the Plaintiff seeking dismissal of any affirmative defense after the joinder of issue" ( Carver Fed. Sav. Bank v Redeemed Christian Church of God , Intl. Chapel , HHH Parish , Long Is ., NY , Inc., 35 Misc 3d 1228 [A], 954 NYS2d 758 [Sup Ct, Suffolk County 2012, slip op, at 3]). In order for a Defendant to successfully oppose such a motion, the Defendant must show his or her possession of a bona fide defense, i.e., one having "a plausible ground or basis which is fairly arguable and of substantial character" ( Feinstein v Levy , 121 AD2d 499, 500, 503 NYS2d 821 [2d Dept 1986]).
Self-serving and conclusory allegations do not raise issues of fact (see, Rosen Auto Leasing , Inc. v Jacobs , 9 AD3d 798, 799-800, 780 NYS2d 438 [3d Dept 2004]), and do not require the Plaintiff to respond to alleged affirmative defenses which are based on such allegations ( Charter One Bank , FSB v Leone , 45 AD3d 958, 959, 845 NYS2d 513 [3d Dept 2007]). In instances where a Defendant fails to oppose a motion for summary judgment, the facts, as alleged in the moving papers, may be deemed admitted and there is, in effect, a concession that no question of fact exists ( see, Kuehne & Nagel , Inc. v Baiden , 36 NY2d 539, 369 NYS2d 667 [1975]; see also, Madeline D'Anthony Enters ., Inc. v Sokolowsky , 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012]; Argent Mtge. Co ., LLC v Mentesana , 79 AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). Additionally, "uncontradicted facts are deemed admitted" ( Tortorello v Carlin , 260 AD2d 201, 206, 688 NYS2d 64 [1st Dept 1999] [internal quotation marks and citations omitted]).
Inasmuch as the standing of the Plaintiff has now been drawn into question, it was incumbent upon the Plaintiff to prove such standing before being entitled to any relief (see, CitiMortgage , Inc. v Rosenthal , 88 AD3d 759, 931 NYS2d 638 [2d Dept 2011]). The standing of a Plaintiff in a mortgage foreclosure action is measured by its ownership, holder status or possession of the note and mortgage at the time of the commencement of the action (see, Bank of NY v Silverberg , 86 AD3d 274, 926 NYS2d 532 [2d Dept 2011]; U.S. Bank , N.A. v Collymore , 68 AD3d 752, supra). A mortgage "is merely security for a debt or other obligation, and cannot exist independently of the debt or obligation" ( Deutsche Bank Natl. Trust Co. v Spanos , 102 AD3d 909, 911, 961 NYS2d 200 [2d Dept 2013] [internal quotation marks and citations omitted]). Holder status is established where the Plaintiff is the special endorsee of the note or takes possession of a mortgage note that contains an endorsement in blank on its face or attached thereto, as the mortgage follows an incident thereto (see, Mortgage Elec. Registration Sys ., Inc. v Coakley , 41 AD3d 674, 838 NYS2d 622 [2d Dept 2007]; First Trust Natl. Assn. v Meisels , 234 AD2d 414, 651 NYS2d 121 [2d Dept 1996]). "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, and the mortgage passes with the debt as an inseparable incident" ( U.S. Bank , N.A. v Collymore , 68 AD3d 752, supra at 754 [internal quotation marks and citations omitted]).
Initially, the Plaintiff's failure to furnish a certificate of conformity in compliance with CPLR 2309 (c) for the affidavit of its representative, which was notarized outside the state, is not a fatal defect because such certification may be provided nunc pro tunc (see, CPLR 2001; Betz v Daniel Conti , Inc., 69 AD3d 545, 892 NYS2d 477 [2d Dept 2010]). For the same reason, the uniform form certificate of acknowledgment that was erroneously executed by Mr. McCloskey, instead of by a notary public, may be remedied nunc pro tunc (see, CPLR 2001).
Nevertheless, the Plaintiff failed to establish, prima facie, that it had standing because its evidentiary submissions in support of the motion did not adequately demonstrate that the note was physically delivered to it prior to the commencement of the action (see, Wells Fargo Bank , NA v Burke , 125 AD3d 765, 5 NYS3d 107 [2d Dept 2015]; US Bank N.A. v Faruque , 120 AD3d 575, 991 NYS2d 630 [2d Dept 2014]; Bank of NY Mellon v Gales , 116 AD3d 723, 982 NYS2d 911 [2d Dept 2014]; Deutsche Bank Natl. Trust Co. v Haller , 100 AD3d 680, 954 NYS2d 551 [2d Dept 2012]; Deutsche Bank Natl. Trust Co. v Rivas , 95 AD3d 1061, 945 NYS2d 328 [2d Dept 2012]; HSBC Bank USA v Hernandez , 92 AD3d 843, 939 NYS2d 120 [2d Dept 2012]). While the Plaintiff's representative alleges that the endorsed note was in the Plaintiff's possession at the time of commencement of this action, he did not provide any factual details concerning when the Plaintiff received physical possession of the note, and thus the Plaintiff failed to establish that it had physical possession of the note prior to commencing this action ( see, Bank of Am ., N.A. v Paulsen , 125 AD3d 909, 6 NYS3d 68 [2d Dept 2015]; Deutsche Bank Natl. Trust Co. v Barnett , 88 AD3d 636, 931 NYS2d 630 [2d Dept 2011]).
Furthermore, in this case, the note contains two endorsements, and the Plaintiff's representative did not allege when the two endorsements were placed on the note. It is, therefore, not clear whether the endorsements were effectuated prior to the commencement of this action (see, Deutsche Bank Natl. Trust Co. v Haller , 100 AD3d 680, supra; U.S. Bank , N.A. v Collymore , 68 AD3d 752, supra). Additionally, while McCloskey alleges that the Plaintiff "directly or through an agent," has possession of the promissory note, he failed to disclose who the Plaintiff's purported "agent" could be or establish that any such agency relationship does, in fact exist (see, Wells Fargo Bank , NA v Ostiguy , 127 AD3d 1375, 6 NYS3d 323, 2015 NY Slip Op 03015 [3d Dept, Apr 9, 2015]). Nor did the Plaintiff submit any evidence of the corporate mergers and/or name changes between the various entities alleged to be in the chain-of-title of the note and mortgage (see, Banking Law § 602; Ladino v Bank of Am ., 52 AD3d 571, 861 NYS2d 683 [2d Dept 2008]; TD Bank , N.A ., 2014 NY Misc LEXIS 5364, 2014 WL 7150017, 2014 NY Slip Op 33197 [U] [Sup Ct, Queens County 2014]). Regarding the purported assignment of the note and mortgage, the assignment of the mortgage from MERS, to the Plaintiff dated November 14, 2011, transferred only the mortgage and, thus, the Plaintiff failed to demonstrate that the note had also been assigned at that time (see, US Bank N.A. v Faruque , 120 AD3d 575, supra; Bank of NY v Silverberg , 86 AD3d 274, supra; Kluge v Fugazy , 145 AD2d 537, 536 NYS2d 92 [2d Dept 1988]; cf., Mortgage Elec. Registration Sys ., Inc. v Coakley , 41 AD3d 674, 838 NYS2d 622 [2d Dept 2007]). Under these circumstances, the Plaintiff failed to establish, prima facie, that it had standing to commence this action.
The Court now turns to the issue of the Plaintiff's compliance with certain conditions precedent to this lawsuit. Regarding the 30-day notice required by section 15 of the mortgage, the Plaintiff demonstrated its prima facie burden with respect to service of the same upon Rodomista at the notice address provided by him in the mortgage (see, Community Bank , N.A. v Naito , 118 AD3d 1181, 987 NYS2d 260 [3d Dept 2014]; cf., HSBC Mtge. Corporation (USA) v Gerber , 100 AD3d 966, 955 NYS2d 131 [2d Dept 2012]). An examination of the notice shows that it includes Rodomista's name, the property address, the alleged date of default, the amount needed to reinstate the mortgage, and the address where payment was required to be sent. Regardless of whether Rodiomista occupied the property, section "8" of the note provides that notice shall be given to Rodomista by first class mail addressed to him at the property address, or at a different address if notice of a different address is given to the lender. There is no proof before the court that Rodomista provided the lender, the Plaintiff, or any of the Plaintiff's agents with a different address for notice purposes. The Rodomista Defendants have also failed to demonstrate, or even allege, that Rodomista had prior written permission from the Plaintiff or its predecessors to effect a transfer of title to the property from him to the Defendant, Home Consultants, Inc., a condition set forth in the mortgage (Mtge ¶ 18), which entitled the Plaintiff to immediate acceleration. In any event, even if the default notice was improperly sent to Rodomista at the subject property, the Plaintiff's service of the 90-day notice to Rodomista at the Port Jefferson property, whether required or not, would have otherwise met the requirements of the mortgage with respect to notice of default ( see, Wachovia Bank , N.A. v Carcano , 106 AD3d 724, 965 NYS2d 516 [2d Dept 2013]). Thus, the mere denial of receipt by Rodomista is insufficient to raise a triable issue of fact with respect to the 30-day default notice ( see, Grogg v South Rd. Assoc ., L.P., 74 AD3d 1021, supra; Countrywide Home Loans v Brown , 305 AD2d 626, 760 NYS2d 200 [2d Dept 2003]; see also, Emigrant Mtge. Co ., Inc. v Persad , 117 AD3d 676, 985 NYS2d 608 [2d Dept 2014]; IndyMac Bank , F.S.B. v Kamen , 68 AD3d 931, 890 NYS2d 649 [2d Dept 2009]). Accordingly, the sixth and seventh affirmative defenses are dismissed.
With respect to the 90-day notice contemplated by RPAPL §1304, while the Plaintiff alleges that it mailed such a notice to Rodomista at the Port Jefferson residence, it is not clear from the Plaintiff's conflicting submissions whether the mortgage at issue was a "home loan" and, thus, subject to the requirements RPAPL § 1304 and, if so, whether the Plaintiff failed to comply with the notice requirements of the statute at the time of commencement (see, RPAPL § 1304; US Bank N.A. v Caronna , 92 AD3d 865, 938 NYS2d 809 [2d Dept 2012]; see also, US Bank N.A. v Kostanovic , 2015 NY Misc LEXIS 685, 2015 NY Slip Op 50307 [U] [Sup Ct, Queens County 2015]; Valley Natl. Bank v Fowkes , 2012 NY Misc LEXIS 5317, 2012 WL 6055788, 2012 NY Slip Op 32797 [U] [Sup Ct, Suffolk County 2012]). If a 90-day notice was required, then, in that case, the Plaintiff failed to demonstrate compliance with the statute because it requires service to the mortgagor at his last known address, and, if different, to the property (see, RPAPL 1304 [2]). It would appear that the Plaintiff may have sent a 90-day notice to Rodomista at the Port Jefferson residence, although not required to do so, however, that is an issue which cannot be determined conclusively on the papers submitted. Thus, the Plaintiff failed to sustain its prima facie burden with respect to the defense of lack of compliance with RPAPL §1304, which is set forth in the combined tenth affirmative defense.
The Court reaches a different conclusion with respect to the Rodomista Defendants' other affirmative defenses. The Plaintiff submitted sufficient proof that the remainder of the affirmative defenses set forth in the answer, all of which are unsupported, are subject to dismissal due to their unmeritorious nature (see, Becher v Feller , 64 AD3d 672, 884 NYS2d 83 [2d Dept 2009]; Wells Fargo Bank Minn ., N.A. v Perez , 41 AD3d 590, 837 NYS2d 877 [2d Dept 2007]; Coppa v Fabozzi , 5 AD3d 718, 773 NYS2d 604 [2d Dept 2004] [unsupported affirmative defenses are lacking in merit]; see also, Bank of NY Mellon v Scura , 102 AD3d 714, 961 NYS2d 185 [2d Dept 2013]; Scarano v Scarano , 63 AD3d 716, 880 NYS2d 682 [2d Dept 2009] [process server's sworn affidavit of service is prima facie evidence of proper service]; La Salle Bank N.A. v Kosarovich , 31 AD3d 904, 820 NYS2d 144 [3d Dept 2006]; CFSC Capital Corp. XXVII v Bachman Mech. Sheet Metal Co., 247 AD2d 502, 669 NYS2d 329 [2d Dept 1998] [an affirmative defense based upon the notion of culpable conduct is unavailable in a foreclosure action]; US Bank Natl. Assn. v McPherson , 35 Misc 3d 1219 (A), 951 NYS2d 84, 2012 NY Slip Op 50742 [U] [Sup Ct, Queens County 2012, slip op, at 11-12; ["Mitigation of damages is not an affirmative defense to an action to foreclose a mortgage or for reformation of a mortgage]). Furthermore, "when a mortgagor defaults on loan payments, even if only for a day, a mortgagee may accelerate the loan, require that the balance be tendered or commence foreclosure proceedings, and equity will not intervene" ( Home Sav. of Am ., FSB v Isaacson , 240 AD2d 633, 633, 659 NYS2d 94 [2d Dept 1997]). The Plaintiff also demonstrated that the defense of champerty does not apply to the subject loan (see, Judiciary Law § 489; SB Schwartz & Co ., Inc. v Levine , 82 AD3d 742, 918 NYS2d 171 [2d Dept 2011] [transaction not champertous within the meaning of Judiciary Law § 489 if, inter alia, the primary purpose of the transaction is to enforce a legitimate claim]). Moreover, in this case, the Plaintiff was free to transfer the note and mortgage, absent any language which expressly prohibited the assignment (see, Matter of Stralem , 303 AD2d 120, 758 NYS2d 345 [2d Dept 2003]).
With respect to the eighth affirmative defense, the general, original jurisdiction of the Supreme Court of the State of New York encompasses all actions at law and equity, except those expressly proscribed by the State and Federal Constitutions or other acts entitled to supremacy (see, NY Const. Art. VI § 7 [a]; Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 278 NYS2d 793 [1967]). Further, the instant action foreclosure action, which was commenced as a result of the alleged breach of the various mortgage loan documents, is clearly a justiciable controversy (see, RPAPL § 1301, et seq.). That an action to foreclose a mortgage is within the subject matter jurisdiction of this Court is clear. Appellate authorities have repeatedly held that "[a] Plaintiff in an action to foreclose a mortgage establishes its case as a matter of law through production of the mortgage, the unpaid note and evidence of a default" ( Wells Fargo Bank v Cohen , 80 AD3d 753, supra at 755). Thus, this Court has exclusive jurisdiction to determine, according to governing statutes, the issues raised by the pleadings or by motion, including those for accelerated judgments, which are viewed as trial equivalents, and those raised at the trial of the action, including adjudication of the sufficiency of proof and the reception of evidence ( see, Balogh v H.R.B. Caterers , 88 AD2d 136, 452 NYS2d 220 [2d Dept 1982]).
In opposition to the motion, the Rodomista Defendants have offered no proof or arguments in support of any of the pleaded defenses contained in the answer, except as to the first, third, fourth and sixth affirmative defenses, and solely as to the alleged lack of proper notice pursuant to RPAPL § 1304 that is asserted in the tenth affirmative defense. Notably, the Rodomista Defendants do not deny that Rodomista received the loan proceeds, or that Rodomista has defaulted on the mortgage loan payments in the opposing papers (see, Citibank , N.A. v Souto Geffen Co ., 231 AD2d 466, 647 NYS2d 467 [1st Dept 1996]; see also, Stern v Stern , 87 AD2d 887, 449 NYS2d 534 [2d Dept 1982]). The failure by the Rodomista Defendants to raise and/or assert each of the remaining pleaded defenses in the answer in opposition to the Plaintiff's motion warrants the dismissal of same as abandoned under the case authorities cited above (see, Kuehne & Nagel , Inc. v Baiden , 36 NY2d 539, supra; see also, Madeline D'Anthony Enters ., Inc. v Sokolowsky , 101 AD3d 606, supra). All of the Rodomista Defendants' unsupported affirmative defenses are thus dismissed. Additionally, the fourth affirmative defense, alleging a void assignment, is dismissed as duplicative of the first affirmative defense, alleging a lack of standing (see, CPLR 3211 [b]).
The Rodomista Defendants' request for an additional mandatory settlement conference is denied. According to the records maintained by the Court's computerized database, a settlement conference of the type contemplated by CPLR 3408 was held before the specialized foreclosure conference part on January 10, 2003. A representative of the Plaintiff attended and participated in said conference. At the conference, the presiding referee reported to the Court that Rodomista was not eligible for foreclosure settlement conference pursuant to CPLR 3408 because the property was not his primary residence at that time (see, CPLR 3408; RPAPL 1304 [5] [a]; Emigrant Savs. Bank v Sia , 2012 NY Misc LEXIS 3377, 2012 WL 3134214, 2012 NY Slip Op 31854 [U] [Sup Ct, Suffolk County 2012]). As a result, this case was dismissed from the foreclosure conference program. In opposition, the Rodomista Defendants failed to raise a triable issue of fact with respect to this issue by demonstrating that the subject loan was a "home loan" or that the property was owner-occupied at the time of the conference (see, RPAPL §1304 [3], [5][a]). Accordingly, no further foreclosure settlement conference is required under any statute, law or rule.
The branch of the cross motion for an order pursuant to CPLR 3126 compelling the Plaintiff to respond to his previously served discovery demands and/or precluding the Plaintiff from offering evidence at trial in support of the complaint is denied because the Rodomista Defendants failed to provide an affirmation of a good-faith effort to resolve the discovery dispute, as required by Uniform Rules of Trials Courts (22 NYCRR) § 202.12 ( see, Ponce v Liu , 123 AD3d 787, 996 NYS2d 548 [2d Dept 2014]). In any event, this branch of the cross motion is entirely without merit because it is unsupported by a compliance conference order directing the requested discovery ( see, HSBC Bank , USA , N.A. v Arias , 112 AD3d 785, 977 NYS2d 323 [2d Dept 2013]; Oller v Liberty Lines Tr . , Inc . , 111 AD3d 903, 975 NYS2d 768 [2d Dept 2013]). In an effort to bring this litigation to a conclusion, however, the Plaintiff and the Rodomista Defendants are each directed to review their responses to the discovery demands served upon them and to furnish responses thereto, or to update, amplify and/or supplement those previously served one week prior to the compliance conference.
The Plaintiff's request for an amendment of the caption an order pursuant to CPLR 1024 by substituting Susan Thomas for the fictitious Defendant JOHN DOE #1 and excising the remaining fictitious Defendants, JOHN DOE #2-25 is granted in part and denied in part (see, Flagstar Bank v Bellafiore , 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012]). The Plaintiff demonstrated that Susan Thomas was a tenant residing in the property at the time of commencement of this action. While counsel avers that JOHN DOE #2 to JOHN DOE #25 are no longer necessary parties, the Plaintiff's submissions do not include an affidavit of attempted service upon any of the other fictitious "JOHN DOE" Defendants, or an affidavit from one with personal knowledge that the only resident of the property is Susan Thomas. Accordingly, the caption is amended by substituting Susan Thomas for JOHN DOE #1. The Plaintiff may renew its request to excise the remaining fictitious Defendants upon proper evidentiary proof that there are no remaining tenants or occupants in the property.
The court has considered all other demands for relief interposed by the parties on these motions and denies them as it finds that such demands to be without merit.
Accordingly, the motion by the Plaintiff for summary judgment is determined as indicated above, and the second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, twelfth and thirteenth affirmative defenses are dismissed. The combined tenth affirmative is also dismissed, except for the portion therein relating to compliance with the provisions of RPAPL § 1304. The cross motion by the Rodomista Defendants for, inter alia, dismissal of the complaint is denied.
In view of the foregoing the proposed order submitted by the Plaintiff has been marked "not signed."
DATED: JUNE 3, 2015
_______________________________________
HON JAMES HUDSON, A.J.S.C.
FINAL DISPOSITIONXNON-FINAL DISPOSITION