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Bank of New York Mellon v. Davis

Supreme Court, Suffolk County

March 31, 2017

The Bank of New York Mellon, Plaintiffs,
Ann Marie Davis, Defendants.

          For Plaintiffs: Rosicki, Rosicki & Associates, P.C.

          For Defendants: Stephen C. Silverberg, PLLC

          Hon. Howard H. Heckman Jr., J.S.C.

         Upon the following papers numbered 1 to 25 read on this motion: Notice of Motion/ Order to Show Cause and supporting papers 1-14 Mot 001; Notice of Cross Motion and supporting papers 15-19 X mot 002; Answering Affidavits and supporting papers 20-21; Replying Affidavits and supporting papers 22-23; Other 24-25; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that this motion by plaintiff The Bank of New York Mellon, seeking an order: 1) granting summary judgment striking the answer of the defendants Ann Marie Davis and The Ann Marie Davis Revocable Living Trust by Ann Marie Davis as Trustee; 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 the cross motion by defendants Ann Marie Davis and The Ann Marie Davis Revocable Living Trust by Ann Marie Davis as Trustee seeking an order pursuant to CPLR 3211(a)(3) & 3212 denying plaintiff's motion and dismissing the complaint or, in the alternative staying plaintiff's motion pending completion of discovery, is denied; 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 sum of $420, 750.00 executed by the defendant Ann Marie Davis on December 8, 2006 in favor of Vertical Lend, Inc. On that same date the defendant executed a promissory note promising to re-pay the entire amount of the indebtedness to the mortgage lender. By assignment dated April 1, 2013, Mortgage Electronic Registration Systems, Inc. as nominee for Vertical Lend, Inc. assigned the mortgage to plaintiff The Bank of New York Mellon. By deed dated January 12, 2007 defendant Ann Marie Davis conveyed title to the premises to defendant The Ann Marie Davis Revocable Living Trust. Plaintiff claims that the defendant has defaulted in making timely monthly mortgage payments since November 1, 2012. Plaintiff's motion seeks an order granting summary judgment striking defendants' answer and for the appointment of a referee.

         In opposition and in support of the cross motion, the defendants submit two attorney affirmations and claim that the plaintiff's motion must be denied since the proof submitted by the plaintiff in the form of an affidavit from an employee of the current mortgage service provider fails to provide sufficient admissible evidence to support its claim that it is entitled to a foreclosure judgment. Defendants claim that the current servicing agent's affidavit is not based upon personal knowledge of the facts which would establish: 1) plaintiff's standing to prosecute this action; 2) defendant's default in making timely mortgage payments; and 3) plaintiff's compliance with mortgage and statutory requirements with respect to service of notices of default since the agent relies upon records maintained by a prior mortgage servicer. Defendants argue that the proof submitted by the plaintiff, in an attempt to establish the bank's possession of the original promissory note, constitutes hearsay and therefore the mortgagee's summary judgment motion must be denied. Defendants also contend that the evidence submitted fails to prove The Bank of New York Mellon was the owner or lawful holder of the promissory note prior to commencing this action and therefore the action must be dismissed. Defendants argue that, in the alternative, plaintiff's motion must be stayed pending additional discovery including a deposition of the mortgage servicing employee who, defendants claim, may not be competent to provide admissible evidence in support of the mortgage lender's application.

         In opposition and in reply, the plaintiff claims that the mortgage service provider's agent's affidavit is based upon personal knowledge gained as a result of reviewing the business records maintained by the mortgage lenders and that under the business records exception the foreclosure specialist's affidavit provides sufficient relevant, admissible proof to show that the plaintiff has standing to maintain this action through possession of the duly indorsed promissory note on January 17, 2013 which was prior to commencement of this action on March 20, 2015. Plaintiff also claims that the mortgage servicer's affidavit provides sufficient proof to show that the 90 day default notice required pursuant to RPAPL 1304 and the default notice required by the mortgage itself were properly served in accordance with legal requirements. Plaintiff argues that the defendants' remaining arguments in opposition to the motion and in support of their remaining affirmative defenses and counterclaims are not supported by relevant, admissible evidence in the record and are therefore meritless.

         Although the defendants have denominated their cross motion as a motion to dismiss pursuant to CPLR 3211(a), the service of an answer renders the motion as untimely (CPLR 3211(e)) and therefore defendants' application is considered as one for summary judgment. 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 N.Y.2d 395 (1957)). The moving party bears the initial burden of proving entitlement to summary judgment (Winegrad v. NYU Medical Center, 64 N.Y.2d 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 N.Y.2d 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 N.Y.2d 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. Eraboba, 127 A.D.3d 1176, 9 N.Y.S.3d 312 (2nd Dept., 2015); Wells Fargo Bank, N.A. v. Ali, 122 A.D.3d 726, 995 N.Y.S.2d 735 (2nd Dept., 2014)). Where the plaintiff's standing is placed in issue by the defendants' answer, the plaintiff must also establish its standing as part of its prima facie showing (Aurora Loan Services v. Taylor, 25 N.Y.2d 355, 12 N.Y.S.3d 612 (2015); Loancare v. Firshing, 130 A.D.3d 787, 14 N.Y.S.3d 410 (2nd Dept., 2015); HSBC Bank USA, N.A. v. Baptiste, 128 A.D.3d 77, 10 N.Y.S.3d 255 (2nd 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 A.D.3d 94, 13 N.Y.S.3d 129 (2nd Dept., 2015)). Either a written assignment of the note or the physical transfer of the note to the plaintiff prior to the commencement of the action is sufficient to transfer the obligation and to provide standing (Wells Fargo Bank, N.A. v. Parker, 125 A.D.3d 848, 5 N.Y.S.3d 130 (2nd Dept., 2015); U.S. Bank, N.A. v. Guy, 125 A.D.3d 845, 5 N.Y.S.3d 116 (2nd Dept., 2015)).

         Proper service of an RPAPL 1304 notice on borrower(s) is a condition precedent to the commencement of a foreclosure action and the plaintiff has the burden of establishing compliance with this condition (Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609 (2nd Dept., 2011); First National Bank of Chicago v. Silver, 73 A.D.3d 162, 899 N.Y.S.2d 256 (2nd 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.

         The plaintiff's evidentiary proof in support of its summary judgment motion consists primarily of the submission of an affidavit from the mortgage service provider and attorney-in-fact identified as New Penn Financial LLC d/b/a Shellpoint Mortgage Servicing (Shellpoint) for the mortgage assignee, The Bank of New York Mellon. The mortgage service provider's foreclosure litigation specialist's affidavit states that the information provided is taken from the assignee/mortgage servicer's business records which includes records acquired from the prior servicer of the mortgage loan. The affidavit sets forth the details confirming the borrower's default, the plaintiff's possession of the duly indorsed promissory note prior to commencement of this action, and the details surrounding the mortgage lender's service of the 30 day mortgage default notice, and service and filing of the 90 day default notice in compliance with mortgage requirements and pursuant to RPAPL 1304 & 1306.

         Paragraphs 1, 2, 6, 8, 9, 12, 13 & 14 of the foreclosure specialist's affidavit provides in pertinent part:

1. I am the Foreclosure Litigation Specialist of New Penn Financial LLC d/b/a Shellpoint Mortgage Servicing, servicer to plaintiff herein, and as such, am fully familiar with the facts and circumstances hereinafter set forth based upon a review and examination of the records maintained by Plaintiff in the regular course of business. It is Plaintiff's regular course of business to make and maintain such records.
2. These records were made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, by a person with knowledge, and are made in the course of business activity conducted regularly by the Plaintiff. To the extent that the business records were created by prior holders and/or servicers of said loan, those records have been integrated into New Penn Financial LLC d/b/a Shellpoint Mortgage Servicing's business records and are kept and relied upon as a regular ...

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