Opinion
No. 12–3195.
07-08-2014
U.S. BANK NATIONAL ASSOCIATION, as Trustee for J.P. Morgan Mortgage Trust 2006–S4, Plaintiff, v. Frank A. CARNIVALE a/k/a Frank A. Carnevale; "John Does" and "Jane Does," said name being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien the premises, Defendants.
Rosicki, Rosicki & Associates, P.C., (Catherine Gran, Esq., of Counsel), Plainview, attorneys for Plaintiff. Rusk, Waldin, Heppner & Martuscello, LLP, (Jason J. Kovacs, Esq., of Counsel), Kingston, attorneys for Defendant.
Rosicki, Rosicki & Associates, P.C., (Catherine Gran, Esq., of Counsel), Plainview, attorneys for Plaintiff.
Rusk, Waldin, Heppner & Martuscello, LLP, (Jason J. Kovacs, Esq., of Counsel), Kingston, attorneys for Defendant.
MICHAEL H. MELKONIAN, J.
Plaintiff U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Trust 2006–S4 (hereinafter referred to as "plaintiff"), has moved for an order dismissing the verified answer in this foreclosure action, for summary judgment on its complaint and the appointment of a referee to compute the amount due, an order deeming all non-appearing defendants in default, and for an order amending the caption. Defendant Frank A. Canivale a/k/a Frank A. Carnevale (hereinafter referred to as "defendant") opposes and cross-moves to dismiss plaintiff's complaint.
Defendant entered into a mortgage in the sum of $275,000.00, with plaintiff's predecessor-in-interest, Mortgage Electronic Registration Systems, Inc., (MERS) as nominee for American Brokers Conduit, its Successors and its Assigns, on property known as 2392 Brunswick Road, Wallkill, New York ("the property"). Plaintiff alleges that the mortgagor defendant defaulted in his payment obligations on March 1, 2012 and that such default continues to date. The terms of the note and mortgage contain an acceleration clause, which entitles plaintiff to demand the total outstanding balance upon default. This foreclosure action was commenced by the filing and service of a summons and complaint on or about September 10, 2012. Defendant has not tendered the full balance, but has submitted an answer containing several affirmative defenses, including lack of standing. The remaining defendants are in default by virtue of their failure to appear or answer in this action.
In a foreclosure action, a mortgagee producing evidence of the mortgage, unpaid note and the mortgagor's default will be entitled to summary judgment (see, Phelps Corp. v. Jones, 108 AD3d 814, 815 [3rd Dept.2013] ; Charter One Bank, FSB v. Leone, 45 AD3d 958, 958 [3rd Dept.2007] ; HSBC Bank USA v. Merrill, 37 AD3d 899, 900 [3rd Dept.2007], leave dismissed 8 NY3d 967 [2007] ). Where, as here, an answer served includes the defense of standing or lack of capacity to sue, a mortgagee must further establish its standing to succeed on a motion for summary judgment (see, U.S. Bank, N.A. v. Collymore, 68 AD3d 752 [2nd Dept.2009] ).
Here, the moving papers include copies of the mortgage, the note executed by defendant on September 26, 2006, which note bears an indorsement in blank by the original lender, together with due evidence of a default under the terms thereof. The moving papers also contain an affidavit of Phoneysay Say, Vice–President for J.P. Morgan Chase Bank, N.A., the mortgage loan servicing agent for plaintiff, who asserts that at the time the action was commenced plaintiff was the holder of the note and mortgage. The moving papers also include copies of the affidavits of service on all of the defendants; a copy of the pleadings; a copy of the 90 day notice of intent to foreclose dated April 3, 2012; and a copy of the RPAPL § 1304 notices sent to the defendant with the summons and complaint. Plaintiff also submits a copy of "Affidavit of Note Possession" executed by Angela Payton, Assistant Secretary for J.P. Morgan Chase Bank, N.A., who asserts that Chase maintained physical possession of the note and mortgage as of October 19, 2006. Defendant is named as the mortgagor and payor on the note. The transfer of the mortgage to Chase was later memorialized in a written Assignment of Mortgage dated June 18, 2012 and recorded July 11, 2012. Thus, plaintiff's counsel states that the plaintiff is the current holder of the note and mortgage and was the holder of the note and mortgage on the date the action was commenced. The moving papers also contain a copy of the assignment of mortgage. Counsel asserts that the defendant was served with a 90 day notice pursuant to RPAPL § 1304 and with all notices in compliance with RPAPL § 1303.
The second page of this document was inadvertently left out of the moving papers and was included in plaintiff's reply papers.
This Court finds that the plaintiff's submissions are sufficient to establish its entitlement to summary judgment against defendant. The moving papers demonstrate, prima facie, that none of the asserted defenses and/or counterclaims set forth in the answer of defendant are meritorious and plaintiff is entitled to summary judgment on its claims against defendant (see, HSBC Bank USA, Nat. Ass'n v. Sage, 977 N.Y.S.2d 446 [3rd Dept.2013] ). As stated above, the complaint herein sufficiently sets forth a valid cause of action for foreclosure. Plaintiff has submitted a copy of the mortgage, note and affidavit from Ms. Say establishing defendant's default in payment. The plaintiff demonstrated proper service of the summons and complaint and showed by admissible evidence that it had standing to commence the action as it had properly been in physical possession of the note and mortgage as of the date of the commencement of the action. In addition, the plaintiff has submitted sufficient proof to show that notices were served on the defendant in compliance with RPAPL §§ 1303 and 1304. Therefore, the moving papers demonstrated, prima facie, that none of the asserted defenses set forth in the answer of defendant or in the defendant's cross-motion are meritorious and plaintiff is therefore entitled to summary judgment on its claims against defendant (see, HSBC Bank USA, Nat. Ass'n v. Sage, 977 N.Y.S.2d 446 [3rd Dept.2013] ).
As the plaintiff has made a prima face case for summary judgment, the burden shifts to the defendant to produce evidence in admissible form demonstrating the existence of a defense that properly could raise an issue of fact as to his default (see, HSBC Bank USA v. Merrill, 37 AD3d 899, 900 [3rd Dept.2007] ; LaSalle Bank Natl. Assn. v. Kosarovich, 31 AD3d 904, 905 [3rd Dept.2006] ).
In opposition to the motion, although the defendant's counsel made several allegations with regard to standing which do not have merit, defendant has not disputed that he executed the note and mortgage, defaulted on his loan payments, received notice of the default, that he attempted to cure his default or was not properly served with the summons and complaint. As stated above, plaintiff demonstrated that it had standing to commence the action. Insofar as defendant asserts violation of the Pooling and Servicing Agreement, the defendant has no standing to assert any such alleged violation since he is not a party to the contract (see, 767 Third Ave. LLC v. Orix Capital Markets, LLC, 26 AD3d 216 [2006] lv. denied 8 NY3d 803 [2007] ). With respect to the defendant's remaining affirmative defenses asserted in his answer, it appears that he has abandoned them since he neither relied on these defenses to oppose the motion nor submit any evidence in support. In any event, the defenses are without merit and contradicted by the plaintiff's documentary evidence and the court records.
Accordingly, plaintiff's motion for summary judgment is granted and the affirmative defenses contained in the defendant's answer are stricken. The submissions further reflect that plaintiff is entitled to amend the caption to delete the names of the John Doe defendants. That branch of the motion for a default judgment against the remaining defendants who have not answered or appeared herein is granted. Plaintiff's application for the appointment of a referee to compute the amounts due under the subject mortgage is also granted and it is further
ORDERED that this action be, and the same is hereby referred to Peter M. Torncello, Esq., having an office at 3 Wallbrook Court, Cohoes, New York 12047, telephone number (518) 496–1445, as Referee to ascertain and compute the amount due to the plaintiff for principal, interest, and other disbursements advanced as provided by statute and in the Note and Mortgage upon which this action was brought, to examine and report whether or not the mortgage premises should be sold in parcels; and it is further
ORDERED, that by accepting this appointment, the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR 36), including but not limited to, section 36.2(c) ("Disqualification from Appointment") and section 36.2(d) ("Limitations on Appointments Based on Compensation").
Defendant's cross-motion is denied.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the plaintiff. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
SO ORDERED.
Papers Considered:
Notice of Motion dated February 27, 2014;
Affirmation of Jeffrey C. Ertel, Esq., dated February 27, 2014, with exhibits annexed;
Affidavit of Phoneysay Say dated July 19, 2013;
Notice of Cross–Motion dated march 25, 2014;
Affirmation of Jason J. Kovacs, Esq., dated March 25, 2014, with exhibits annexed;
Affirmation of Catherine Gran, Esq., dated May 16, 2014, with exhibit annexed;
Affirmation of Jason J. Kovacs, Esq., dated May 23, 2014.