U.S. Bankv.Fowkes

SUPREME COURT - STATE OF NEW YORK IAS PART 18 - SUFFOLK COUNTYMay 22, 2019
INDEX NO.: 16512/2013 (N.Y. Sup. Ct. 2019)
INDEX NO.: 16512/20132019 N.Y. Slip Op. 31531

INDEX NO.: 16512/2013

05-22-2019

U.S. BANK N.A., Plaintiff, v. WILLIAM FOWKES JR., Defendants.

PLAINTIFF'S ATTORNEY: ECKERT SEAMANS CHERIN & MELLOT 10 BANK STREET, STE 700 WHITE PLAINS, NY 10601 DEFENDANT'S ATTORNEY: ABRAMS FENSTERMAN FENSTERMAN THREE DAKOTA DRIVE, STE 300 LAKE SUCCESS, NY 11042


Short Form Order PRESENT: HON. HOWARD H. HECKMAN JR., J.S.C. MOTION DATE: 3/19/2019
MOTION SEQ. NO.: #002 MG PLAINTIFF'S ATTORNEY:
ECKERT SEAMANS CHERIN & MELLOT
10 BANK STREET, STE 700
WHITE PLAINS, NY 10601 DEFENDANT'S ATTORNEY:
ABRAMS FENSTERMAN FENSTERMAN
THREE DAKOTA DRIVE, STE 300
LAKE SUCCESS, NY 11042

Upon the following papers numbered 1 to 30 read on this motion 1-20: Notice of Motion/ Order to Show Cause and supporting papers___; Notice of Cross Motion and supporting papers___; Answering Affidavits and supporting papers 21-28; Replying Affidavits and supporting papers 29-30; Other___ ; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that this motion by plaintiff U.S. Bank, N.A..seeking an order: 1) granting summary judgment striking the answer and counterclaim asserted by defendants William Fowkes and Jennifer Fowkes; 2) discontinuing the action against defendants designated as "John Does" and "Jane Does"; 3) deeming all appearing and non-appearing defendants in default; 4) amending the caption; and 5) appointing a referee to compute the sums due and owing to the plaintiff in this mortgage foreclosure action is granted; and it is further

ORDERED that plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of the Court; and it is further

ORDERED that plaintiff is directed to serve a copy of this order with notice of entry upon all parties who have appeared and not waived further notice pursuant to CPLR 2103(b)(1)(2) or (3) within thirty days of the date of this order and to promptly file the affidavits of service with the Clerk of the Court.

Plaintiff's action seeks to foreclose a mortgage in the original sum of $1,400,000.00 executed by defendant William Fowkes Jr. on May 26, 2005 in favor of Eastern Savings Bank, FSB. On the same date mortgagor Fowkes executed a promissory note promising to re-pay the entire amount of the indebtedness to the mortgage lender. This mortgage and note were assigned to Washington Mutual Bank, FA, by assignment dated August 22, 2006. Defendant/mortgagor Fowkes subsequently executed a promissory note and Consolidated, Extension and Modification Agreement (CEMA) each dated August 22, 2006 in favor of Washington Mutual Bank, FA, creating a single lien in the sum of $1,900,000.00. This mortgage and note were assigned to plaintiff by assignment dated December 14, 2011, Plaintiff claims that Fowkes defaulted under the terms of the CEMA by failing to make timely monthly mortgage payments beginning May 1, 2010 and continuing to date. Plaintiff commenced this action by filing a summons, complaint and notice of pendency in the Suffolk County Clerk's Office on June 24, 2013. Defendant/mortgagor William Fowkes Jr. and Jennifer Fowkes served an answer dated June 21, 2017 asserting twelve (12) affirmative defenses and one (1) counterclaim.

Plaintiff's motion seeks an order granting summary judgment and for the appointment of a referee to compute the sums due and owing to the plaintiff. In opposition, defendant claims that plaintiff has failed to prove it has standing to maintain this action, and that plaintiff has failed to prove it served 90-day pre-foreclosure default notices required pursuant to RPAPL 1304.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material question of fact from the case. The grant of summary judgment is appropriate only when it is clear that no material and triable issues of fact have been presented (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957)). The moving party bears the initial burden of proving entitlement to summary judgment (Winegrad v. NYU Medical Center, 64 NY2d 851 (1985)). Once such proof has been proffered, the burden shifts to the opposing party who, to defeat the motion, must offer evidence in admissible form, and must set forth facts sufficient to require a trial of any issue of fact (CPLR 3212(b); Zuckerman v. City of New York, 49 NY2d 557 (1980)). Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 (1979)).

Entitlement to summary judgment in favor of the foreclosing plaintiff is established, prima facie by the plaintiff's production of the mortgage and the unpaid note, and evidence of default in payment (see Wells Fargo Bank N.A. v. Erobobo, 127 AD3d 1176, 9 NYS3d 312 (2 Dept., 2015); Wells Fargo Bank, N.A. v. Ali, 122 AD3d 726, 995 NYS2d 735 (2 Dept., 2014)). Where the plaintiff's standing is placed in issue by the defendant's answer, the plaintiff must also establish its standing as part of its prima facie showing (Aurora Loan Services v. Taylor, 25 NY3d 355, 12 NYS3d 612 (2015); Loancare v. Firshing, 130 AD3d 787, 14 NYS3d 410 (2 Dept., 2015); HSBC Bank USA, N.A. v. Baptiste, 128 AD3d 77, 10 NYS3d 255 (2 Dept., 2015)). In a foreclosure action, a plaintiff has standing if it is either the holder of, or the assignee of, the underlying note at the time that the action is commenced (Aurora Loan Services v. Taylor, supra.; Emigrant Bank v. Larizza, 129 AD3d 94, 13 NYS3d 129 (2 Dept., 2015)). Either a written assignment of the note or the physical transfer of the note to the plaintiff prior to commencement of the action is sufficient to transfer the obligation and to provide standing (Wells Fargo Bank, N.A. v. Mandrin, 160 AD3d 1014 (2 Dept., 2018) Tribeca Lending Corp. v. Lawson, 159 AD3d 936 (2 Dept., 2018); Deutsche Bank National Trust Co. v. Iarrobino, 159 AD3d 670 (2 Dept., 2018); Central Mortgage Company v. Davis, 149 AD3d 898 (2 Dept., 2017); U.S. Bank. N.A. v. Ehrenfeld, 144 AD3d 893, 41 NYS3d 269 (2 Dept., 2016); JPMorgan Chase Bank v. Weinberger, 142 AD3d 643, 37 NYS3d 286 (2 Dept., 2016); CitiMortgage, Inc. v. Klein, 140 AD3d 913, 33 NYS3d 432 (2 Dept., 2016); U.S. Bank N.A. v. Godwin, 137 AD3d 1260, 28 NYS3d 450 (2 Dept., 2016); Wells Fargo Bank, N.A. v. Joseph, 137 AD3d 896, 26 NYS3d 583 (2 Dept., 2016); Emigrant Bank v. Larizza, supra.; Deutsche Bank National Trust Co. v. Whalen, 107 AD3d 931, 969 NYS2d 82 (2 Dept., 2013); Wells Fargo Bank, N.A. v. Parker, 125 AD3d 848, 5 NYS3d 130 (2 Dept., 2015); U.S. Bank v. Guy, 125 AD3d 845, 5 NYS3d 116 (2 Dept., 2015)). A plaintiff's attachment of a duly indorsed note to its complaint or to the certificate of merit required pursuant to CPLR 3012(b), has been held to constitute due proof of the plaintiff's standing to prosecute its claims for foreclosure and sale (Nationstar Mortgage, LLC v. LaPorte, 162 AD3d 784, 75 NYS3d 432 (2 Dept., 2018); Bank of New York Mellon v. Theobalds, 161 AD3d 1137 (2 Dept., 2018); HSBC Bank USA, N.A. v. Oscar, 161 AD3d 1055, 78 NYS3d 428 (2 Dept., 2018); CitiMortgage, Inc. v. McKenzie, 161 AD3d 1040, 78 NYS3d 200 (2 Dept., 2018); U.S. Bank, N.A. v. Duthie, 161 AD3d 809, 76 NYS3d 226 (2 Dept., 2018); Bank of New York Mellon v. Genova, 159 AD3d 1009, 74 NYS3d 64 (2 Dept., 2018); Mariners Atl. Portfolio, LLC v. Hector, 159 AD3d 686, 69 NYS3d 502 (2 Dept., 2018); Bank of New York Mellon v. Burke, 155 AD3d 932, 64 NYS3d 114 (2 Dept., 2017); JPMorgan Chase Bank, N.A. v. Weinberger, 142 AD3d 643, 37 NYS3d 286 (2 Dept., 2016); FNMA v. Yakaputz II, Inc., 141 AD3d 506, 35 N YS3d 236 (2 Dept., 2016); Deutsche Bank National Trust Co. v. Leigh, 137 AD3d 841, 28 NYS3d 86 (2 Dept., 2016); Nationstar Mortgage LLC v. Catizone, 127 AD3d 1151, 9 NYS3d 315 (2 Dept., 2015)).

Proper service of RPAP 1304 notices on borrower(s) are conditions precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing compliance with these conditions (Aurora Loan Services, LLC v. Weisblum, 85 AD3d 95, 923 NYS2d 609 (2 Dept., 2011); First National Bank of Chicago v. Silver, 73 AD3d 162, 899 NYS2d 256 (2 Dept., 2010)). RPAPL 1304(2) provides that notice be sent by registered or certified mail and by first-class mail to the last known address of the borrower(s), and if different, to the residence that is the subject of the mortgage. The notice is considered given as of the date it is mailed and must be sent in a separate envelope from any other mailing or notice and the notice must be in 14-point type.

At issue is whether the evidence submitted by the plaintiff is sufficient to establish its right to foreclose. The defendant does not contest his failure to make timely payments due under the terms of the promissory note and mortgage agreement since May 1, 2010. Rather, the issues raised by the defendant concerns whether the proof submitted by the mortgage lender provides sufficient admissible evidence to prove its entitlement to summary judgment based upon defendant's continuing default, plaintiff's standing, and plaintiff's compliance with statutory pre-foreclosure notice requirements.

CPLR 4518 provides:

Business records.

(a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.


The Court of Appeals in People v. Guidice, 83 NY2d 630, 635, 612 NYS2d 350 (1994) explained that "the essence of the business records exception to the hearsay rule is that records systematically made for the conduct of business... are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of the conduct of the enterprise." (quoting People v. Kennedy, 68 NY2d 569, 579, 510 NYS2d 853 (1986)). It is a unique hearsay exception since it represents hearsay deliberately created and differs from all other hearsay exceptions which assume that declarations which come within them were not made deliberately with litigation in mind. Since a business record keeping system may be designed to meet the hearsay exception, it is important to provide predictability in this area and discretion should not normally be exercised to exclude such evidence on grounds not foreseeable at the time the record was made (see Trotti v. Estate of Buchanan, 272 AD2d 660, 706 NYS2d 534 (3 Dept., 2000)).

The three foundational requirements of CPLR 4518(a) are: 1) the record must be made in the regular course of business- reflecting a routine, regularly conducted business activity, needed and relied upon in the performance of business functions; 2) it must be the regular course of business to make the records- (i.e. the record is made in accordance with established procedures for the routine, systematic making of the record); and 3) the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made (see People v. Kennedy, supra @ pp. 579-580)). The "mere filing of papers received from other entities, even if such papers are retained in the regular course of business, is insufficient to qualify the documents as business records." (People v. Cratsley, 86 NY2d 81, 90, 629 NYS2d 992 (1995)). The records will be admissible "if the recipient can establish personal knowledge of the maker's business practices and procedures, or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business." (State of New York v. 158 Street & Riverside Drive Housing Company, Inc., 100AD3d 1293, 1296, 956 NYS2d 196 (2012); leave denied, 20 NY3d 858 (2013); see also Viviane Etienne Medical Care, P.C. v. Country-Wide Insurance Company, 25 NY3d 498, 14 NYS3d 283 (2015); Deutsche Bank National Trust Co. v. Monica, 131 AD3d 737, 15 NYS3d (3 Dept., 2015); People v. DiSalvo, 284 AD2d 547, 727 NYS2d 146 (2 Dept., 2001); Matter of Carothers v. GEICO, 79 AD3d 864, 914 NYS2d 199 (2 Dept., 2010) ).

The statute (CPLR 4518) clearly does not require a person to have personal knowledge of each and every entry contained in a business record (see Citibank N.A. v. Abrams, 144 AD3d 1212, 40 NYS3d 653 (3 Dept., 2016); HSBC Bank USA, N.A. v. Sage, 112 AD3d 1126, 977 NYS2d 446 (3 Dept., 2013); Landmark Capital Inv. Inc. v. Li-Shan Wang, supra.)). As the Appellate Division, Second Department stated in Citigroup v. Kopelowitz, 147 AD3d 1014, 48 NYS3d 223 (2 Dept., 2017): "There is no requirement that a plaintiff in a foreclosure action rely on a particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a) and the records themselves actually evince the facts for which they are relied upon." Decisions interpreting CPLR 4518 are consistent to the extent that the three foundational requirements: 1) that the record be made in the regular course of business; 2) that it is in the regular course of business to make the record; and 3) that the record must be made at or near the time the transaction occurred. - if demonstrated, make the records admissible since such records are considered trustworthy and reliable. Moreover, the language contained in the statute specifically authorizes the court discretion to determine admissibility by stating "if the judge finds" that the three foundational requirements are satisfied the evidence shall be admissible.

The three affidavits submitted from the current mortgage servicer/attorney-in-fact's (Select Portfolio Servicing, Incorporated's) document control officer dated December 18, 2018 and from the prior servicer's (JPMorgan Chase Bank, N.A.'s) operations division leader dated May 1, 2018 and from the prior servicer's (JPMorgan Chase Bank, N.A.'s) vice president dated November 9, 2018 provide the evidentiary foundation for establishing the mortgage lender's right to foreclose. The affidavits set forth each affiant's review of the business records maintained by the mortgage servicers; the fact that the books and records are made in the regular course of the mortgage servicer's business; that it was SPS/Chase's regular course of business to maintain such records; that the records were made at or near the time the underlying transactions took place; and that the records were created by an individual with personal knowledge of the underlying transactions. Based upon the submission of these three affidavits, plaintiff has provided an admissible evidentiary foundation which satisfies the business records exception to the hearsay rule with respect to the issues raised in this summary judgment application.

With respect to the issue of standing, plaintiff has proven standing by submission of an "affidavit of note possession" from the plaintiff's prior mortgage servicer's (JPMorgan Chase Bank, N.A.'s) operations division leader testifying that Chase, as the mortgage lender's mortgage servicer and agent, had possession of the original indorsed in blank consolidated promissory note beginning on July 18, 2009 and continuously until May 31, 2016. Such testimony, together with submission of a copy of the indorsed in blank promissory note provides sufficient admissible proof of standing since plaintiff had physical possession of the indorsed in blank promissory note prior to and on the date of the commencement of this action on June 24, 2013 (Aurora Loan Services v. Taylor, supra.; Wells Fargo Bank, N.A v. Parker, supra.; U.S. Bank, N.A. v. Ehrenfeld, 144 AD3d 893, 41 NYS3d 269 (2 Dept., 2016); GMAC v. Sidberry, 144 AD3d 863, 40 NYS3d 783 (2 Dept., 2016); U.S. Bank, N.A. v. Carnivale, 138 AD3d 1220 (3 Dept., 2016)). Any alleged issues concerning the mortgage assignments are therefore irrelevant to the issue of standing since plaintiff has established possession of the promissory note prior to commencing this action (FNMA v. Yakaputz II, Inc., 141 AD3d 506, 35 NYS3d 236 (2 Dept., 2016); Deutsche Bank National Trust Company v. Leigh, 137 AD3d 841, 28 NYS3d 86 (2 Dept., 2016)).

With respect to the issue of the defendant's default in making payments, in order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, the plaintiff must submit the mortgage, the unpaid note and admissible evidence to show de fault (see Property Asset Management, Inc. v. Souffrant et al., 162 AD3d 919, 75 NYS3d 432 (2 Dept., 2018); PennyMac Holdings, Inc. V. Tomanelli, 139 AD3d 688, 32 NYS3d 181 (2 Dept., 2016); North American Savings Bank v. Esposito-Como, 141 AD3d 706, 35 NYS3d 491 (2 Dept., 2016); Washington Mutual Bank v. Schenk, 112 AD3d 615, 975 NYS2d 902 (2 Dept., 2013)). Plaintiff has provided admissible evidence in the form of a copy of the note and mortgage, and an affidavit attesting to the mortgagor's undisputed default in making timely mortgage payments sufficient to sustain its burden to prove Fowkes has defaulted under the terms of the parties agreement by failing to make timely payments since May 1, 2010 (CPLR 4518; see Wells Fargo Bank, N.A. v. Thomas, supra.; Citigroup v. Kopelowitz, supra.)). Accordingly, and in the absence of any proof to raise an issue of fact concerning the defendant's continuing default, plaintiff's application for summary judgment based upon defendant's breach of the mortgage agreement and promissory note must be granted.

With respect to service of the pre-foreclosure RPAPL 1304 90-day notices, the proof required to prove strict compliance with the statute (RPAPL 1304) can be satisfied: 1) by plaintiff's submission of an affidavit of service of the notices (see CitiMortgage, Inc. v. Pappas, 147 AD3d 900, 47 NYS3d 415 (2 Dept., 2017); Bank of New York Mellon v. Aquino, 131 AD3d 1186, 16 NYS3d 770 (2 Dept., 2015); Deutsche Bank National Trust Co. v. Spanos, 102 AD3d 909, 961 NYS2d 200 (2 Dept., 2013)); or 2) by plaintiff's submission of sufficient proof to establish proof of mailing by the post office (see Nationstar Mortgage, LLC v. LaPorte, 162 AD3d 784, 79 NYS3d 70 (2 Dept., 2018); HSBC Bank USA, N.A. v. Ozcan, 154 AD3d 822. 64 NYS3d 38 (2 Dept., 2017); CitiMortgage, Inc. v. Pappas, supra pg. 901; see Wells Fargo Bank, N.A. v. Trupia, 150 AD3d 1049, 55 NYS3d 134 (2 Dept., 2017)). Once either method is established a presumption of receipt arises (see Viviane Etienne Medical Care, P.C. v. Country-Wide Insurance Co., supra.; Flagstar Bank v. Mendoza, 139 AD3d 898, 32 NYS3d 278 (2 Dept., 2016); Residential Holding Corp. v. Scottsdale Insurance Co., 286 AD2d 679, 729 NYS2d 766 (2 Dept., 2001)).

The record shows that there is sufficient evidence to prove that mailing by certified and first class mailing was done by the post office proving strict compliance with RPAPL mailing requirements. Plaintiff has submitted proof in the form of an affidavit from the current mortgage servicer's (SPS's) document control officer and from the prior mortgage servicer's (Chase's) vice president confirming that the first class and certified mailings were done on November 15, 2012 which was more than ninety (90) days prior to commencing this action on June 24, 2013; together with two (2) copies of the 90-day notices which were addressed to mortgagor Fowkes at the mortgaged premises residential address: the first notice is evidence of the notice which was mailed by certified mail, return receipt requested and contains a twenty digit article tracking number (7190 1075 4460 1510 1806); the second notice is evidence of the same 90-day notice which was mailed by first class mail. In addition, plaintiff submits a copy of the USPS certificate of bulk mailing reflecting Chase's receipt for its first class mailings sent on November 15, 2012 and two internal Chase business record documents entitled "Chase Mortgage Banking First Class Proof of Mailing Report" and "Chase Mortgage Banking Certified Regulatory Mail Register". The redacted page of the first class mailing report confirms first class mailings sent to the mortgagor at the mortgaged premises and a separate East Hampton residential address on November 15, 2012; the redacted page of the certified regulatory mail register confirms certified mailings (with 20 digit article tracking numbers) sent to the mortgagor at the mortgaged premises and a separate East Hampton residential address on November 15, 2012. The internal redacted business record page concerning the certified mailing, set forth the identical certified article tracking number which matched the copy of the 90-day notice submitted by plaintiff. In addition, plaintiff submits a copy of the RPAPL 1306 proof of filing statement with the New York State Department of Financial Services also confirming mailing of the notices to the defendant/mortgagor. Such proof provides a sufficient showing of strict compliance with the mailing and filing requirements of RPAPL 1304 & 1306 (Citimortgage, Inc. v. Borek, 171 AD3d 848, 97 NYS3d 657 (2 Dept., 2019); Nationstar Mortgage, LLC v. LaPorte, supra.; HSBC Bank USA, N.A. v. Ozcan supra.; see also Bank of America, N.A. v. Brannon, 156 AD3d 1, 63 NYS3d 352 (1 Dept., 2017)). Defendant and defense counsel's conclusory denial of strict compliance, is not supported by any relevant, admissible evidence sufficient to raise a genuine issue of fact which would defeat plaintiff's summary judgment motion (see PHH Mortgage Corp., v. Muricy, 135 AD3d 725, 24 NYS3d 137 (2 Dept., 2016); HSBC Bank v. Espinal, 137 AD3d 1079, 28 NYS3d 107 (2 Dept., 2016)).

With respect to defendant's remaining contention that he is entitled to discovery, CPLR 3214(b) imposes an automatic stay of discovery upon service of a summary judgment motion. Moreover, even were the court to further consider defendant's claim of entitlement to discovery, no legal grounds exist to further delay prosecution of this action since there has been no showing by the defendant to demonstrate how any additional evidence could create a genuine issue of fact. Absent some demonstration that reasonable attempts to discover facts might give rise to significant issues of fact, no basis exists to continue litigation in view of the fact that plaintiff has submitted sufficient evidentiary proof to establish it right to foreclose the mortgage (see Lee v. T.F. DeMilo Corp., 29 AD3d 867, 815 NYS2d 700 (2 Dept., 2006); Sasson v. Setina Mfg. Co., 26 AD3d 487, 810 NYS2d 500 (2 Dept., 2006)).

Finally, defendant has failed to submit any admissible evidence to support his remaining affirmative defenses and counterclaim in opposition to plaintiff's motion. Accordingly, those defenses and counterclaim must be deemed abandoned and are hereby dismissed (see Kronick v. L.P. Therault Co., Inc., 70 AD3d 648, 892 NYS2d 85 (2 Dept., 2010); Citibank, N.A, v. Van Brunt Properties, LLC, 95 AD3d 1158, 945 NYS2d 330 (2 Dept., 2012); Flagstar Bank v. Bellafiore, 94 AD3d 0144, 943 NYS2d 551 (2 Dept., 2012); Wells Fargo Bank Minnesota, N.A. v. Perez, 41 AD3d 590, 837 NYS2d 877 (2 Dept., 2007)).

Accordingly, plaintiff's motion seeking an order granting summary judgment is granted. The proposed order of reference has been signed simultaneously with execution of this order. Dated: May 22, 2019

/s/_________


J.S.C.