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Washington Mut. Bank v. Valencia

Supreme Court, Appellate Division, Second Department, New York.
Feb 14, 2012
92 A.D.3d 774 (N.Y. App. Div. 2012)

Opinion

2012-02-14

WASHINGTON MUTUAL BANK, etc., respondent, v. Edith VALENCIA, et al., appellants, et al., defendants.

Stephen A. Katz, New York, N.Y., for appellants. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern of counsel), for respondent.


Stephen A. Katz, New York, N.Y., for appellants. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern of counsel), for respondent.

WILLIAM F. MASTRO, A.P.J., ARIEL E. BELEN, L. PRISCILLA HALL and PLUMMER E. LOTT, JJ.

In an action, inter alia, to foreclose a mortgage, the defendants Edith Valencia and Ricaurte Valencia appeal from an order of the Supreme Court, Queens County (Markey, J.), dated August 12, 2010, which, among other things, upon the default of the defendant Edith Valencia in appearing or answering, granted the plaintiff's motion for summary judgment on the complaint. Justice Hall has been substituted for Justice Angiolillo ( see 22 NYCRR 670.1[c] ).

ORDERED that the appeal by the defendant Edith Valencia is dismissed, as no appeal lies from an order entered on the default of the appealing party ( see CPLR 5511; Development Strategies Co., LLC, Profit Sharing Plan v. Astoria Equities, Inc., 71 A.D.3d 628, 628, 896 N.Y.S.2d 396); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendant Ricaurte Valencia; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendant Ricaurte Valencia.

“ ‘[I]n moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default’ ” ( Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d 856, 856, 877 N.Y.S.2d 200, quoting Republic Natl. Bank of N.Y. v. O'Kane, 308 A.D.2d 482, 482, 764 N.Y.S.2d 635; see Rossrock Fund II, L.P. v. Osborne, 82 A.D.3d 737, 737, 918 N.Y.S.2d 514; Aames Funding Corp. v. Houston, 44 A.D.3d 692, 693, 843 N.Y.S.2d 660, cert. denied 555 U.S. 1048, 129 S.Ct. 646, 172 L.Ed.2d 614; Village Bank v. Wild Oaks Holding, 196 A.D.2d 812, 812, 601 N.Y.S.2d 940). Here, the plaintiff satisfied its prima facie burden on that branch of its motion which was for summary judgment on the complaint insofar as asserted against the defendant Ricaurte Valencia (hereinafter the defendant). Accordingly, it was incumbent on the defendant to establish by admissible evidence the existence of a triable issue of fact as to a defense ( see Grogg v. South Rd. Assoc., L.P., 74 A.D.3d 1021, 1022, 907 N.Y.S.2d 22; see also Pennsylvania Higher Educ. Assistance Agency v. Musheyev, 68 A.D.3d 736, 736, 888 N.Y.S.2d 911; Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 576, 825 N.Y.S.2d 766; Famolaro v. Crest Offset, Inc., 24 A.D.3d 604, 605, 807 N.Y.S.2d 387; Bank of N.Y. v. Vega Tech. USA, LLC, 18 A.D.3d 678, 679, 794 N.Y.S.2d 922).

The defendant raised the defense that he was authorized to rescind the underlying transaction, and in fact did so, pursuant to the Truth in Lending Act (hereinafter TILA) ( see 15 USC § 1601, et seq.). However, under the relevant provisions of the TILA, only an “obligor” is authorized to rescind a subject transaction (15 USC § 1635[a] ). Although the defendant signed the mortgage, he did not sign the note at issue. Thus, the defendant was not an obligor within the meaning of 15 USC § 1635(a), and therefore was not authorized pursuant to the TILA to rescind the underlying transaction at issue ( see Falkiner v. OneWest Bank, FSB, 780 F.Supp.2d 460 [E.D.Va.]; Moazed v. First Union Mtge. Corp., 319 F.Supp.2d 268, 273 n. 4 [D.Conn.]; cf. Ferreira v. Mortgage Elec. Registration Sys., Inc., 794 F.Supp.2d 297 [D.Mass] ). Furthermore, the defendant did not tender any evidence tending to show that he or the defendant Edith Valencia, his wife, was using the subject property as a “principal dwelling,” and therefore, that the right of rescission set forth in 15 USC § 1635(a) was applicable to the underlying transaction. Thus, the defendant failed to establish by admissible evidence the existence of a triable issue of fact as to a defense based on the TILA right of rescission set forth in 15 USC § 1635(a).

The defendant's remaining contention is improperly raised for the first time on appeal, and, accordingly, is not properly before this Court ( see Wells Fargo Bank, N.A. v. Cohen, 80 A.D.3d 753, 755, 915 N.Y.S.2d 569).


Summaries of

Washington Mut. Bank v. Valencia

Supreme Court, Appellate Division, Second Department, New York.
Feb 14, 2012
92 A.D.3d 774 (N.Y. App. Div. 2012)
Case details for

Washington Mut. Bank v. Valencia

Case Details

Full title:WASHINGTON MUTUAL BANK, etc., respondent, v. Edith VALENCIA, et al.…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Feb 14, 2012

Citations

92 A.D.3d 774 (N.Y. App. Div. 2012)
939 N.Y.S.2d 73
2012 N.Y. Slip Op. 1245

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