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U.S. Bank Trust, N.A. v. Rodriguez

Supreme Court, Suffolk County

December 1, 2017

U.S. Bank Trust, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST,, Plaintiff,
v.
John A. Rodriguez, BANK OF AMERICA, N.A. SUCCESSOR BY MERGER TO FLEET NATIONAL BANK, BROOKHAVEN MEMORIAL HOSPITAL AS ASSIGNEE FOR SUFFOLK HEALTHCARE SOLUTIONS INC, CACH OF COLORADO LLC, CAPITAL ONE BANK USA NA, CHRISTOPHER CIANO, JANE CIANO, CITIBANK N.A., CITIBANK SOUTH DAKOTA NA, CLERK OF THE SUFFOLK COUNTY DISTRICT COURT, CLERK OF THE SUFFOLK COUNTY TRAFFIC & PARKING VIOLATIONS AGENCY, ELIZABETH GARCIA, GOOD SAMARITAN HOSPITAL, H B CO LLC, HERITAGE GARDENS AT BRENTWOOD LLC, U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, HSBC BANK NEVADA NA, INCORPORATED VILLAGE OF ISLANDIA, MIDLAND FUNDING LLC, MIDLAND FUNDING LLC DOING BUSINESS IN NY AS MIDLAND FUNDING OF DELAWARE LLC, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NY FINANCIAL SERVICES LLC, PEOPLE OF THE STATE OF NEW YORK, PORTFOLIO RECOVERY ASSOCIATES LLC, RAZOR CAPITAL II LLC APO CREDIT ONE BANK NA, STEPHANY RODRIGUEZ, TEACHERS FEDERAL CREDIT UNION, TOWN SUPERVISOR TOWN OF BROOKHAVEN, UNIFUND CCR LLC, UNITED STATES OF AMERICA ACTING THROUGH THE IRS, JOHN DOE (Those unknown tenants, occupants, persons or corporations or their heris, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises.), Defendant(s).

          GROSS POLOWY, LLC, Attorneys for Plaintiff

          JOHN A. RODRIGUEZ (and others, see attached)

          Hon. Robert F. Quinlan, J.S.C.

         Upon the following papers electronically filed and read on these applications for: expedited judgment of foreclosure and sale; Notice of Motion/Order to Show Cause and supporting papers (Seq. #001 Doc # 43-48): Affidavits in opposition to motion and supporting papers _________; Reply Affirmation in Further Support of Motion ________; it is

         ORDERED that this motion by plaintiff U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust for expedited judgment of foreclosure and sale pursuant to RPAPL §§ 1309 and 1351 is granted; and it is further

         ORDERED that pursuant to RPAPL § 1351 (1) the mortgaged premises is to be sold under the direction of the referee within ninety (90) days of the date of this order.

         This is an action to foreclose a mortgage on real property known as 796 A Bayview Avenue, Amityville, Suffolk County, New York ("the property"). On April 23, 2007 defendant John A. Rodriguez ("defendant") executed a note in favor of Bank of America, N.A. in the principal sum of $292, 500.00, at the same time giving Bank of America, N.A. a mortgage on the property to secure the note. Defendant allegedly defaulted on the payments due pursuant to the note and mortgage, failed to cure the default. Plaintiff U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust ("plaintiff") commenced the instant action by filing the summon, complaint and notice of pendency with the Suffolk County Clerk on March 27, 2017. Defendant was personally served on March 30, 2017. None of the defendants have answered or appeared except for notices of appearance filed by defendants the Internal Revenue Service and Bank of America, N.A., Successor by Merger to Fleet National Bank.

         The court's computerized records indicate that a foreclosure settlement conference was held on June 20, 2017 defendant did not appear and this matter was marked not settled and referred to an Individual Assignment Part. Thus, there has been compliance with CPLR 3408.

         Plaintiff now moves pursuant to RPAPL §1309 to expedite judgment of foreclosure and sale to be granted pursuant to RPAPL § 1351. RPAPL §1309 provides that plaintiff may move for expedited relief once defendant's time to answer has expired if the property meets the criteria for vacant and abandoned residential property (as defined in RPAPL §1309 [2]) as set forth in RPAPL §1309[1].

         The application meets the preliminary requirements for expedited proceedings pursuant to RPAPL § 1309 as plaintiff's motion was filed after defendants time to answer the complaint had expired, the motion provides the last known address of defendant, provides proof of service upon defendant at the last know address, and contains the information required by RPAPL § 1309 [1]. Additionally the court sent notice to the defendant as required by RPAPL §1309[1].

         Plaintiff's submissions in support of its motion include its attorney's affirmation, affidavit of an authorized officer of Caliber Home Loans, Inc., attorney in fact for plaintiff, in support of expedited motion for judgment of foreclosure and sale for vacant and abandoned property, the note, mortgage, assignment, pleadings, and affidavits of service. Plaintiff also submits copies of three inspection reports with photographs taken at each inspection annexed to the reports.

         The court finds plaintiff has established its entitlement to expedited relief pursuant to RPAPL § 1309. Pursuant to RPAPL § 1309 (4) plaintiff's submissions have established that the property is vacant and abandoned as defined by RPAPL § 1309 (2) (a). As required by RPAPL § 1309 (4), the court finds that by the preponderance of the evidence the property is vacant and abandoned as defined by RPAPL § 1309 (2) (a), based upon the submission of plaintiff's inspector's reports. Those reports show plaintiff's inspector conducted three inspections of the property 25 to 35 days apart at different times of the day. At each inspection it was shown that no occupant was present, that there was no evidence of occupancy on the property and that the property was not being maintained. Thus the property is vacant and abandoned real property as defined by RPAPL § 1309 (2) (a).

         Additionally, pursuant to RPAPL § 1309 (4), plaintiff has established itself as the owner and holder of the subject mortgage and note as it annexed a copy of the note and mortgage to its Certificate of Merit Pursuant to CPLR 3012-b (see Nationstar Mortg., LLC v Catizone, 127 A.D.3d 1151');">127 A.D.3d 1151 [2d Dept 2015]; Nationstar Mortg., LLC v Weisblum, 143 A.D.3d 866 [2d Dept 2016]; Deutsche Bank National Trust Co. v. Logan, 146 A.D.3d 861');">146 A.D.3d 861 [2d Dept 2017]; Deutsche Bank Trust v Garrison, 147 A.D.3d 725');">147 A.D.3d 725 [2d Dept 2017]). Further, after a review of the itemized account of fees and costs and the court's confirmation of the interest calculations, the court finds plaintiff has established the sum due and owing to it upon the note and mortgage.

         On a motion for leave to enter a default judgment, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's failure to answer or appear (CPLR 3215[f]; see Dupps v Betancourt, 99 A.D.3d 855 [2d Dept 2012]; Green Tree Serv., LLC v Cary, 106 A.D.3d 691');">106 A.D.3d 691 [2d Dept 2013]; JPMorgan Chase Bank, N.A. v Boampong, 145 A.D.3d 981');">145 A.D.3d 981 [2d Dept 2016]; US Bank, N.A. v Singer, 145 A.D.3d 1057');">145 A.D.3d 1057 [2d Dept 2016]; Bank of Am., NA v Agarwal, 150 A.D.3d 651');">150 A.D.3d 651 [2d Dept 2017]). Plaintiff has met its proof of a prima facie case through the production of the original ...


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