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JPMorgan Chase Bank, N.A. v. Condello

Supreme Court, Suffolk County

February 27, 2018

JPMorgan Chase Bank, National Association, Plaintiff,
Michael E. Condello a/k/a MICHAEL CONDELLO, ELLEN M. CONDELLO a/k/a ELLEN CONDELLO, and "JOHN DOE" and "JANE DOE", #1 through #7, the last being fictitious and unknown to the plaintiff, the persons or parties intended being the tenants, occupants, persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.

          MORGAN, LEWIS & BOCKIUS Attys. For Plaintiff.

          LAW OFFICES OF CHARLES WALLSHEIN, LLC Atty. For Defendants Condello.

          THOMAS F. WHELAN, J.S.C.

         Upon the following papers numbered 1 to 15 read on this motion to appoint a referee to compute, among other things, and cross motion to dismiss; Notice of Motion/Order to Show Cause and supporting papers 1 - 5; Notice of Cross Motion and supporting papers: 6-9; Opposing papers: 10; 11; 12; Reply papers 13-14 (memorandum); 15 (memorandum); Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that this motion (#001) by the plaintiff for, among other things, summary judgment, amendment of the caption and the appointment of a referee to compute, is granted in its entirety; and it is further

         ORDERED that the cross motion (#002) by the defendants, Michael and Ellen Condello, for dismissal, is denied in its entirety; and it is further

         ORDERED that the proposed Order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further

         ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(3).

         This foreclosure action was commenced by filing on August 14, 2013. In essence, on March 16, 2006, defendant, Michael Condello, borrowed $432, 000.00 from plaintiff's predecessor-in-interest and executed a promissory note and, together with Ellen Condello, a mortgage. The terms of the loan were thereafter modified effective December 1, 2012 to provide for a new unpaid principal balance of $338, 808.82 and a decreased interest rate. Two months later, on February 1, 2013, Michael Condello defaulted by failing to pay the monthly installments due and owing. Michael and Ellen Condello appeared through counsel by filing an answer on September 5, 2013. An amended answer alleging seventeen affirmative defenses and five counterclaims was later filed on August 26, 2014.

         The plaintiff addressed its burden of proof in the moving papers on this summary judgment motion and refuted the affirmative defenses of the answer. Therefore, plaintiff has satisfied its prima facie burden on this summary judgment motion (see HSBC Bank USA, Natl. Assn. v Espinal, 137 A.D.3d 1079, 28 N.Y.S.3d 107');">28 N.Y.S.3d 107 [2d Dept 2016]; U.S. Bank Natl. Assn. v Cox, 148 A.D.3d 692, 49 N.Y.S.3d 527');">49 N.Y.S.3d 527 [2d Dept 2017]). The burden then shifts to defendants (see Bank of America, N.A. v DeNardo, 151 A.D.3d 1008, 58 N.Y.S.3d 469 [2d Dept 2017]) and it is incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting plaintiff's prima facie showing or in support of the affirmative defenses and counterclaims asserted in the answer or otherwise available to defendants (see Flagstar Bank v Bellafiore, 94 A.D.3d 1044, 943 N.Y.S.2d 551');">943 N.Y.S.2d 551');">943 N.Y.S.2d 551');">943 N.Y.S.2d 551 [2d Dept 2012]; Grogg Assocs. v South Rd. Assocs., 74 A.D.3d 1021, 907 N.Y.S.2d 22 [2d Dept 2010]; Wells Fargo Bank v Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681');">896 N.Y.S.2d 681 [2d Dept 2010]; Washington Mut. Bank v O'Connor, 63 A.D.3d 832, 880 N.Y.S.2d 696');">880 N.Y.S.2d 696 [2d Dept 2009]; J.P. Morgan Chase Bank, NA v Agnello, 62 A.D.3d 662, 878 N.Y.S.2d 397');">878 N.Y.S.2d 397 [2d Dept 2009]; Aames Funding Corp. v Houston, 44 A.D.3d 692, 843 N.Y.S.2d 660');">843 N.Y.S.2d 660 [2d Dept 2007]).

         Notably, affirmative defenses predicated upon legal conclusions that are not substantiated with allegations of fact are subject to dismissal (see CPLR 3013, 3018[b]; Katz v Miller, 120 A.D.3d 768, 991 N.Y.S.2d 346');">991 N.Y.S.2d 346 [2d Dept 2014]; Becher v Feller, 64 A.D.3d 672, 677, 884 N.Y.S.2d 83');">884 N.Y.S.2d 83 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 A.D.3d 619, 858 N.Y.S.2d 260');">858 N.Y.S.2d 260 [2d Dept 2008]). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667');">369 N.Y.S.2d 667 [1975]; see also Madeline D'Anthony Enter., Inc. v Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88');">957 N.Y.S.2d 88 [1st Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591[2d Dept 2010]). Additionally, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus without any efficacy (see New York Commercial Bank v J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 969 N.Y.S.2d 796');">969 N.Y.S.2d 796 [2d Dept 2013]; Starkman v City of Long Beach, 106 A.D.3d 1076, 965 N.Y.S.2d 609');">965 N.Y.S.2d 609 [2d Dept 2013]).

         Here, the defendants' opposition and cross motion (#002) rest solely on allegations regarding plaintiff's compliance with RPAPL § 1304. It is noted that defendants raise this contention for the first time in opposition, as it was not raised as a defense in the amended answer. The Court also notes that although both defendants filed an answer, only Michael Condello has submitted an affidavit in support of the opposition and cross motion. The Court addresses the allegations raised herein. However, in accordance with the above, all affirmative defenses and claims raised in the amended answer and not addressed in the opposition and cross motion are dismissed as abandoned. [1]

         The defendants pose two challenges to the plaintiff's compliance with RPAPL § 1304. First, they allege that plaintiff violated the "strict compliance" requirements of RPAPL § 1304 by including an additional informational page in the same envelope as the notice. The defendants' second contention challenges plaintiff's compliance with the mailing requirements of RPAPL § 1304. For the reasons that follow, the defendants' allegations are rejected and the cross motion denied.

         By way of background, the "strict compliance" component of RPAPL § 1304 originated with the appellate court's decision in Aurora Loan Services, LLC v Weisblum, where it was held that the plaintiff must demonstrate strict compliance with the statute or face dismissal (Aurora Loan Services, LLC v Weisblum, 85 A.D.3d 95, 103, 923 N.Y.S.2d 609 [2d Dept 2011]. The Court noted that the legislative intent behind the Home Equity Theft Prevention Act (Real Property Law § 265-a, or "HETPA"), through which RPAPL § 1304 was enacted, was to provide greater protections to borrowers facing foreclosure (see First Natl. Bank of Chicago v Silver, 73 A.D.3d 162, 165 [2d Dept 2010], citing Senate Introducer Mem. in Support, Bill Jacket, L. 2006, ch. 308, at 7-9). RPAPL § 1304 was thereafter enacted "to aid the homeowner in an attempt to avoid litigation, and to facilitate communication between distressed homeowners and lenders and/or servicers" (HSBC Bank USA, Nat. Assn. v Ozcan, 154 A.D.3d 822, 825, 64 N.Y.S.3d 38');">64 N.Y.S.3d 38 [2d Dept 2017], citing Senate Introducer Mem. in Support, Bill Jacket L. 2008, ch. 472, § 2, Aurora Loan Services, LLC v Weisblum, 85 A.D.3d 95, supra). Specifically, "[t]he bill sponsor sought 'to bridge that communication gap in order to facilitate a resolution that avoids foreclosure' by providing a pre-foreclosure notice advising the borrower of 'housing counseling services available in the borrower's area' and an 'additional period of time... to work on a resolution' (Aurora Loan Services, LLC v Weisblum, 85 A.D.3d at 107-08, supra, citing Senate Introducer Mem. in Support, Bill Jacket, L. 2008, ch. 472, at 10).

         To achieve this end, the statute requires that the lender/service mail a notice containing "specific, mandatory language" to the borrower at least 90 days prior to commencement of an anticipated foreclosure filing (RPAPL § 1304[1]). The content requirements of the notice support the "underlying purpose of HETPA to afford greater protections to homeowners confronted with foreclosure" (Aurora Loan Services, LLC v Weisblum, 85 A.D.3d 95, 103, supra, citing First Natl. Bank of Chicago v Silver, 73 A.D.3d 162, 165, 899 N.Y.S.2d 256');">899 N.Y.S.2d 256 [2d Dept 2010]). Further, the ...

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