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Deutsche Bank National Trust Co. v. Cohen

Supreme Court, Suffolk County

March 6, 2018

Deutsche Bank National Trust Company AS TRUSTEE FOR GSR MORTGAGE LOAN TRUST 2007-ARI, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-ARI,, Plaintiff,
v.
David L. Cohen A/K/A DAVID COHEN TRACY J. COHEN A/K/A TRACY COHEN, NATIONAL CITY BANK, PEOPLE OF THE STATE OF NEW YORK C/O CLERK OF THE SUFFOLK COUNTY DISTRICT COURT, PEOPLE OF THE STATE OF NEW YORK, UNITED STATES INTERNAL REVENUE SERVICE, CHASE MANHATTAN BANK USA, N.A., COLORADO CAPITAL INVESTMENTS, INC. SUCCESSOR IN INTEREST TO CITIBANK, HUNTINGTON HOSPITAL, CELTIC FINCL SERVICES, LLC, JOHN T. MATHER MEMORIAL HOSPITAL OF PORT JEFFERSON, INC., F.C.S. REALTY, INC., BNB BANK NATIONAL ASSOCIATION F/K/A BROADWAY NATIONAL BANK, JOSEPH COLONNA, CHARLES DIMARTINO, THOMAS CABOARA, PRO'S CHOICE BEAUTY CARE, INC., SHAHIRA ELTAHAWY, CAPITAL ONE BANK, WORKERS COMPENSATION BOARD OF THE STAT OF NEW YORK, NORTH FORK BANK, JENNIFER A. DEVOE, SUZANNE LYNN COHEN, Defendants.

          Henry P. DiStefano, Esq. LEOPOLD & ASSOCIATES, PLLC Attorneys for Plaintiff.

          William Grausso, Esq. GRAUSSO & FOY, LLP Attorneys for Defendants.

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

         This is an action to foreclose a mortgage on residential real property located at 9 Nursery Court, Huntington, Suffolk County, New York ("the property") given by defendants David L. and Tracy J. Cohen ("defendants") to Quicken Loans, Inc. ("Quicken") on March 13, 2006, to secure a note given by defendants to Quicken on the same day. The mortgage made Mortgage Electronic Registration Systems, Inc. ("MERS") nominee for Quicken as mortgagee solely for the purpose of recording the mortgage, which was recorded with the Suffolk County Clerk ("Clerk") on April 5, 2006.

         Subsequently, plaintiff Deutsche Bank National Trust Company As Trustee for GSR Mortgage Loan Trust 2007-AR1, Mortgage Pass Through Certificates, Series 2007-AR1 ("plaintiff"), Quicken's alleged successor in interest, commenced this action upon the default in payment by defendants of their obligations under the note and mortgage by filing the summons, complaint and notice of pendency with the Clerk on July 29, 2009. Defendants answered, raising affirmative defenses including the claim that plaintiff lacked standing to prosecute the action.

         SUMMARY JUDGMENT DECISION

         LIMITED ISSUE TRIAL

         Plaintiff moved for summary judgment, defendant filed opposition and the motion was orally argued before this court on September 26, 2016. A more complete history of the case is set forth in the decision placed on the record that day, which granted plaintiff's application to amend the caption by excising the "John Doe" and "Jane Doe" defendants, granted plaintiff partial summary judgment dismissing all of defendants' affirmative defenses except their claim that plaintiff lacked standing to prosecute the action, as there were questions of fact as to that issue, and denied plaintiff's application for the appointment of a referee pursuant to RPAPL § 1321.

         At the time of the court's decision on the record, the court issued a Discovery Order and Schedule which directed a limited issue trial on the issue of plaintiff's standing to bring the action and authorized a limited period of discovery. Although the court's order authorized successive summary judgment motions after the filing of a note of issue, neither party availed themselves of this opportunity. The case appeared for a limited issue trial before the court on October 31, 2017.

         The court wishes to emphasize that this was a trial, not a "Framed Issue Hearing, " as it is characterized in plaintiff's memorandum of law. The court's decision of September 26, 2016 granted plaintiff partial summary judgment, but directed that a limited issue trial on the remaining issue of plaintiff's standing to bring the action be held. The decision set a discovery schedule, directed that a note of issue be filed, and only after that would renewed summary judgment motions be allowed. The parties entered into a certification order and plaintiff filed a "Note of Issue - Notice For Trial." No summary judgment motions were filed and the parties proceeded to trial.

         PRIOR DECISION ISSUED IN ERROR AND VACATED

         After the trail, the court reserved decision and directed the parties to file post-trial memorandums of law/ briefs in support of their arguments, including defendants objections to the admission of plaintiff's Exhibit "7" into evidence as a business record, plaintiff's proof of its standing to prosecute the action, and in response to certain other questions raised by the court during the trial. Both parties were to submit their memorandum/brief simultaneously on December 19, 2017. On December 18, 2017 the court received a faxed letter from plaintiff's counsel, copied to defendant's counsel, requesting an extension of time to file his memorandum of law as he had not yet received the transcript. The court advised both parties to file their memorandums/briefs on January 17, 2018. On the afternoon of January 16, 2018, plaintiff's counsel faxed another letter to the court, copying defendant's counsel, requesting a further extension of the time for the parties to file their memorandum of law. The court's staff granted the request and extended the time for both sides to file memorandum to February 22, 2018, but no record of this was placed in the court file or in the computer records maintained by the court. Defendant's counsel filed his memorandum of law on January 17, 2018, and as there was no record of the last extension in the file or the computer records, the court had staff call plaintiff's counsel's office to inquire into the status of plaintiff's memorandum of law, but the phone call was not returned. As there was no response from plaintiff's counsel's office, the court issued an order on February 6, 2018 dismissing plaintiff's action for failure to establish its standing at trial. Upon receiving a copy of the decision, plaintiff's counsel called chambers protesting that he had been granted until February 22nd to submit his memorandum. He was asked to provide a copy of the fax granting the extension, but never provided it. The court's staff found the faxed reply to his letter and the court issued an order dated February 14, 2018 vacating and withdrawing the order of February 6, 2018. Plaintiff's counsel submitted his memorandum of law on February 22, 2018, which has been considered by the court in rendering this decision.

         TRIAL LIMITED TO PROOF OF STANDING

         Where plaintiff's standing to prosecute the action has been placed in issue by defendant's answer, plaintiff must establish its standing to be successful in its action to foreclose the mortgage (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355');">25 N.Y.3d 355 [2015]; Loancare v. Firshing, 130 A.D.3d 787');">130 A.D.3d 787 [2d Dept 2015]; HSBC Bank USA, N.A. v. Baptiste, 128 A.D.3d 77');">128 A.D.3d 77 [2d Dept 2015]; US Bank,, NA v Richard, 151 A.D.3d 1001');">151 A.D.3d 1001 [2d Dept 2017]; Citimo ...


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