In this action to foreclose a mortgage plaintiff-mortgagee, Eastern Savings Bank, FSB ("Eastern"), moves to dismiss "the Third-Party Complaint as to Kriss & Feurstein, LLP pursuant to CPLR Section 3211"; for "Summary Judgment in favor of Plaintiff pursuant to CPLR Section 3212"; for an Order "Striking the Answer and Affirmative Defenses and dismissing the Counterclaims of Defendant Benito Belches ("Belches");" for an Order "Appointing a referee to compute the sums due and owing to Plaintiff"; and for an Order, "Excising Defendants, "John Doe #1 through John Doe #12 from the caption".

Defendant-mortgagor, Belches, in opposition to the motion ignores the request in the motion to "dismiss the Third-Party complaint as to Kriss & Feurstein, LLP ".

Belches was personally served in this foreclosure action with the Summons, Verified Complaint, RPAPL 1303 Notice and Notice of Pendency on March 26, 2009 at 5:53 PM at his residence at 306 Clermont Avenue, Brooklyn, New York. On October 13, 2009 Belches without leave of the Court interposed an Answer and Third-Party Complaint.

Background

Belches is the owner of a three-family dwelling located at 306 Clermont Avenue ("premises"), in Brooklyn's Fort Greene neighborhood. Belches occupies one apartment and two rent paying tenants occupy the other two apartments. Once a neighborhood of burnt-out shells, Fort Greene underwent a revival beginning in the 1980's and ending with it recently being named the 18th best neighborhood in New York City by New York Magazine. The premises has been appraised at 1.6 million dollars.

Belches' affidavit submitted in opposition avers, in relevant part, that:

"2. In August 2007, I contacted mortgage broker Bill Albury from Cartaret Mortgage Company....I had previous dealings with him.

...

3. I informed Mr. Albury that I was 2-3 months in arrears on my mortgage [*2]payments with Option One. Mr. Albury informed my that Eastern Savings Bank was the only bank that would refinance my mortgage.

...

6. I hired Percy A. Randall, Esq. to assist me at the closing. Mr. Randall arrived before me and began to review the documents. When I arrived, Mr. Randall told me he was not comfortable with the terms of the loan, namely that the interest rate was 11% and there was a 3 year pre-payment penalty of almost FIFTY THOUSAND ($50,000) DOLLARS.

...

10. My attorney advised me that I should not go through with the loan; he said that I could not afford it.

...

18. During the course of the closing my attorney negotiated the 3 year pre-payment provision down to 2 ½ years and FIFTY THOUSAND ($50,000) DOLLARS escrow requirement down to THIRTY THOUSAND ($30,000) DOLLARS."

At the closing on December 18, 2007, in order to secure the principal loan of $840,000, Belches executed a Note and Mortgage in favor of Eastern on the premises.

The bulk of the loan proceeds, $644,360, was used to satisfy the existing mortgage held by Option One in which Belches was in default.

Belches at the closing received cash from the loan proceeds in the total sum of $93,735.59.

Prior to the closing Belches had submitted documents to Eastern which indicated that he was the self-employed owner of "Belches Enterprises", earned $15,000 per month ($180,000 a year) and had rental income from the other two apartments in the premises totaling $4000 per month ($2000 each).

It is undisputed that Belches made timely monthly Note and Mortgage payments for seven months from February 1, 2008 to September 1, 2008. Belches failed to pay the regular monthly payment due on September 1, 2008 in the amount of $8936.29 and has failed to pay all subsequent payments.

Discussion

As a threshold matter, plaintiff argues that the answer should be stricken on the grounds that it was served late without leave of the Court. Belches, who was unrepresented at the time, argues that he thought an answer was unnecessary because a foreclosure settlement conference was scheduled. In light of this [*3]reasonable explanation and the Courts' preference for a resolution on the merits, the answer is deemed accepted.

Belches alleges that Eastern is in violation of the Home Affordable Modification Program ("HAMP"). Since Eastern did not accept TARP funds it is not obligated to comply with HAMP, nor is it obligated to modify the Note and Mortgage. Notwithstanding the foregoing, Eastern did participate in the mandatory foreclosure settlement conference held in this matter on December 3, 2009 and offered to make concessions to assist Belches with an attempt to reinstate the loan. However, none of Eastern's good faith offers were accepted. The Order of this court stemming from the settlement conference dated December 3, 2009 confirms that, "Eastern Savings Bank is not a participant in the federal program."

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of a triable issue of fact (CPLR Section 3212 (b); Alverez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Frances Megafu v Tower Insurance Company of New York, 2010 Slip Op. 03883 [2d Dept.]). However, once the moving party has satisfied this obligation, the burden then shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, supra) "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 AD2d 728, 729 [2d Dept.1995]).

In a mortgage foreclosure action in order to establish its prima facie entitlement to summary judgment as a matter of law the plaintiff must submit the mortgage and unpaid note, along with evidence of default.

(U.S. Bank Nat. Assn. TR U/S 6/01/98 (Home Equity Loan Trust 1998-2) v. Alvarez, 49 AD3d 711 [2d Dept. 2008]; Marculescu v Ovanez, 27 A.D.

3d 701 [2d Dept. 2006]).

Eastern has met its initial prima facie burden by tendering a copy of the duly executed note and mortgage, and evidence of a default by Belches. The burden now shifts to Belches to establish by admissible evidence the existence of a genuine triable issue of fact with respect to a bona-fide defense to the action. (U.S. Bank Nat. Assn. TR U/S 6/01/98 (Home Equity Loan Trust 1998-2) v. Alvarez, supra).

In opposition, Belches' attorney in his affirmation avers in relevant part that:

"18. Easter has not proved its prima facie case for Summary Judgment. [*4]

19. The Defendant filed an Answer on October 13, 2009. The answer contains substantive defenses and counter-claims that have genuine triable issues of material fact.

20. Additionally, the attached affidavits (EXHIBIT A and EXHIBIT B) alone demonstrate that there are genuine issues of material fact that are sufficient to defeat the Plaintiff's motion.

21. The mortgage and the note alone do not demonstrate a prima facie case for mortgage foreclosure especially when the instruments were procured through fraud or under duress as demonstrated in the affidavits.

22. Regarding the Defendant's counterclaims, the Defendant's Answer is not boilerplate. To the contrary, it has detailed information about how the Plaintiff violated various state and federal laws."

Belches' attorney's allegations are wholly conclusory and not responsive to the moving papers. In addition, some of the allegations contained in Belches' answer, such as his claim that Eastern promised him an interest rate of 8-9%, are belied by the documentary evidence. Others, such as his claim that he was not represented by an attorney at the closing, are belied by his own affidavit. The only defenses raised specifically in opposition to the motion are fraud and duress.

The elements of a cause of action for fraud are: a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). A claim of fraud must be pleaded with the particularity (CPLR § 3016(b)). Belches does not specify any false statement that could be attributed to Eastern. Eastern has averred that it has no agency relationship with Cartaret or its employee, Bill Albury, and Belches has failed to raise a factual issue regarding their relationship.

A party may void a contract on the grounds of duress "when it establishes that it was compelled to agree to the contract terms because of a wrongful threat by the other party which precluded the exercise of its free will" (805 Third Ave. Co. v. M.W. Realty Assoc., 58 NY2d 447, 451 [1983]; Madey v. Carman, 51 AD3d 985 [2d Dept 2008]). Belches fails to identify any wrongful threat on the part of Eastern. Furthermore, Belches, who concedes that he was advised by his own attorney not to execute the contract, cannot claim that he was not exercising his free will. Finally, although Belches may have been under great duress because of his own financial situation, this is not attributable to Eastern. Thus, Belches' allegations of duress fail to raise a material issue of fact.

Based on the foregoing, plaintiff's motion is in all respects granted.

This constitutes the Decision and Order of the Court.

___________________J.S.C.