Opinion
708605/2014
05-23-2016
U.S. Bank, National Association, AS TRUSTEE FOR THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-BC5, Plaintiff, v. Nasima Azad, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, THE BROOKLYN UNION GAS COMPANY D/B/A KEYSPAN ENERGY DELIVERY, UNITED STATES OF AMERICA ACTING THROUGH THE IRS, JOHN DOE (being fictitious, the names unknown to plaintiff intended to be tenants, occupants, persons or corporations having or claiming an interest in or lien upon the property described in the complaint or their heris at law, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors), Defendants.
The following numbered papers read on this motion by plaintiff for summary judgment pursuant to CPLR 3212, striking the answer interposed by the defendant Nasima Azad and dismissing the counterclaims and defenses, granting an order of reference, ordering the appointment of a referee to determine the amounts due and owing and to determine whether the premises being foreclosed can be sold in parcels, permitting treatment of defendant's answer as a limited notice of appearance, ordering all non-appearing and non-answering defendants to be deemed in default, and amending the caption to rename the John Doe defendants. Papers/Numbered Notice of Motion - Affidavits - Exhibits EF 49-71 Answering Affidavits - Exhibits EF 72-90
Upon the foregoing papers it is ordered that this motion is determined as follows:
Plaintiff commenced this action by filing a copy of the summons and complaint with notice of pendency on or about November 17, 2014. Plaintiff seeks to foreclose on a mortgage given by the defendant Nasima Azad, as record owner, of the subject real property, known as 32-21 51st Street, Woodside, New York to secure a consolidated note, evidencing a loan in the principal amount of $579,079. The plaintiff alleges that a loan modification was entered into on or about June 11, 2009. The plaintiff alleges that it is the holder of the mortgage and underlying obligation and that Nasima Azad defaulted under the terms of the note and mortgage by failing to make the monthly installment payment due on September 1, 2009 and as a consequence, it elected to accelerate the entire mortgage debt. The plaintiff has moved for summary judgment, to amend the caption and for an order of reference.
On October 7, 2008 the plaintiff commenced a foreclosure action against the defendant Nasima Azad. After obtaining an order of reference and a Judgment of Foreclosure and Sale, the plaintiff vacated the Judgment of Foreclosure and Sale and discontinued the action. On February 16, 2010, the plaintiff commenced a second foreclosure action. On August 18, 2010, the plaintiff discontinued the second foreclosure action. On August 20, 2010 the plaintiff commenced a third foreclosure action. In an order dated September 4, 2013, the third foreclosure action was dismissed.
The branch of the motion to amend the caption to substitute Abdul Azad and Fauzia Azad in place of the John Doe defendants is granted. It is ordered that the caption shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-BC5, Plaintiffs, against- NASIMA AZAD, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, THE BROOKLYN UNION GAS COMPANY D/B/A KEYSPAN ENERGY DELIVERY, UNITED STATES OF AMERICA ACTING THROUGH THE IRS, ABDUL AZAD, FAUZIA AZAD, Defendants. INDEX NO. 708605/2014
A party moving for summary judgment must show by admissible evidence that there are no material issues of fact in controversy and that they are entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The defendant has raised the issue of the plaintiff's standing. Once a plaintiff's standing is placed in issue by the defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see U.S. Bank N.A. v Sharif, 89 AD3d 723 [2d Dept 2011]). A plaintiff establishes that it has standing where it demonstrates that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note (Bank of NY v Silverberg, 86 AD3d 274 [2d Dept 2011]). An assignment of the mortgage without assignment of the underlying note or bond is a nullity (Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636 [2011]). 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 (U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept 2009]).
To establish standing an associate from the plaintiff's law firm submitted an affirmation of possession of the original note. The affirmant stated that a review of the business records established that the plaintiff's law firm received the original note, endorsed in blank, on October 7, 2014, which was prior to the commencement of the action, and that it then returned the note to the plaintiff. The vice president of loan documentation for plaintiff's servicer submitted an affidavit stating that since the plaintiff's law firm returned the file containing the note to it that the servicer has retained possession of the note. The plaintiff has, thus, established that it had standing to commence this lawsuit.
The defendant has also raised as an affirmative defense that this action is barred by the statute of limitations. An action to foreclose a mortgage is governed by a six-year statute of limitations (CPLR 213[4]). With respect to a mortgage payable in installments, separate causes of action accrue for each installment that is not paid and the statute of limitations begins to run on the date each installment becomes due (Wells Fargo Bank, N.A. v Cohen, 80 AD3d 753 [2d Dept 2010]; Loiacono v Goldberg, 240 AD2d 476 [2d Dept 1997]). However, once a mortgage debt is accelerated the entire amount is due and the statute of limitations begins to run on the entire debt (Wells Fargo Bank, N.A. v Burke, 94 AD3d 980 [2d Dept 2012]; EMC Mtge. Corp. v Patella, 279 AD2d 604 [2d Dept 2001]). Where, as here, the acceleration of the debt is made optional to the holder of the note and mortgage, some affirmative act must be taken in order to evidence the holder's election to accelerate the debt. There is no question that in this case that the original loan was accelerated by commencement of the first foreclosure action on October 7, 2008. This action was not commenced until November 17, 2014 which is more than six-years after the acceleration in the complaint and, thus, without any further action by the lender this complaint would be barred by the statute of limitations. A lender, however, may revoke its election to accelerate all sums due under an optional acceleration clause in a mortgage provided that there is no change in borrower's position in reliance thereon. This must be done by an affirmative act occurring within the statute of limitations period (EMC Mtge. Corp. v Patella, 279 AD2d at 606).
The plaintiff alleges that there was a modification of the loan. This loan modification would act as a revocation of the acceleration. The defendant, however, denies entering into the loan modification stating that she never saw or signed such documents and did not appear before a notary. Notably the second and third foreclosure complaints while filed after the alleged loan modification do not mention the loan modification. Thus, there is an issue of fact as to whether the defendant entered into a loan modification. Inasmuch as there is question of fact as to whether the loan modification is valid, there is an issue of fact as to whether there was a revocation of the acceleration of the debt and, therefore, whether this action is timely. Therefore, the plaintiff's motion for summary judgment and an order of reference must be denied.
In view of the open question of whether this action was timely commenced, the branches of the motion by plaintiff to strike the remaining affirmative defenses and counterclaims, for a default judgment against the non-answering defendants, and to appoint a referee are denied at this juncture.
Accordingly, the branches of the motion for summary judgment, a default judgment and an order of reference are denied. Dated: May 23, 2016 Long Island City, New York ______________________________