| Colfin FCSB Funding A, LLC v Congregation Chasidei Radomsk of Boro Park |
| 2014 NY Slip Op 51110(U) [44 Misc 3d 1214(A)] |
| Decided on July 23, 2014 |
| Supreme Court, Kings County |
| Demarest, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Colfin FCSB
Funding A, LLC, Plaintiff,
against Congregation Chasidei Radomsk of Boro Park, SALOMON FRAND, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, and "JOHN DOE No.1" through "JOHN DOE #10," the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest or lien upon the premises described in the complaint, , Defendants. |
The following papers read on this motion:Papers Numbered
Plaintiff Colfin FCSB Funding A, LLC ("Colfin") moves for summary judgment in this foreclosure action and for appointment of a referee to compute against defendants Congregation Chasidei Radomsk of Boro Park (the "Borrower") and Salomon Frand ("Frand") (collectively, the "Defendants"). Plaintiff also moves to amend the caption to substitute Chaya Frand ("Ms. Frand") as a tenant of the subject properties in place of the "John Doe" defendants and, pursuant to CPLR 3215(d), for a default judgment against non-answering defendants, the New York City Environmental Control Board ("ECB") and Ms. Frand (collectively, the "Non-Answering Defendants").
BACKGROUNDThe Note provides that it shall be paid in monthly installments with the first payment due on August 1, 2008 and every month thereafter until July 1, 2018. Plaintiff claims that Borrower defaulted by failing to make the payment due on June 1, 2009 and on every month thereafter. The Note provides that if a default occurs, "all amounts owing under this Note shall forthwith become due and payable at the option of [First Central] without notice or demand." The Mortgage provides that the whole outstanding principal and interest amount shall become due and payable at the option of the mortgagee after a default in any installment payment for fifteen (15) days, and that the mortgagee's failure to enforce any of its rights if a default occurs shall not affect the ability of the mortgagee to exercise such rights in the event of any subsequent default.
Plaintiff commenced this action by filing a complaint and a notice of pendency on July 11, 2013. Plaintiff asserts that all parties were properly served and that the Borrower and Frand filed their amended answer on August 29, 2013, but defendants Ms. Frand and the ECB did not respond. Following their failure to respond, plaintiff served Ms. Frand and the ECB with notices pursuant to CPLR 3215(g) and seek a default judgment against the Non-Answering Defendants.
Further, even if Riemer were authorized by Colfin, he lacks any personal knowledge as to the status of the Loan prior to First Central's assignment of the Mortgage and the Note in 2012. Defendants provide evidence that First Central accepted a number of installment payments from Borrower after June 2009, and attach several checks dated May 25, 2011, April 30, 2011, July 9, 2011, July 30, 2011, August 26, 2011, and December 31, 2012. Riemer had no involvement with the Loan at the time of the purported default on June 1, 2009, and therefore lacks sufficient personal knowledge of the circumstances of defendants' alleged default prior to the Assignment in 2012 (see FTBK Investor II, LLC v Joshua Management LLC, 2013 NY Slip Op 30333(U), *18 [NY County 2013]). Accordingly, the Riemer affidavit is not sufficient documentary evidence to demonstrate defendants' default.
The Borrower and Frand have also raised a number of affirmative defenses. Defendants argue in their sixth affirmative defense that plaintiff lacks standing to bring this suit because the Assignment did not assign the Note, and therefore, plaintiff is not the holder of the Note. Plaintiff asserts that the Note was assigned to Colfin through the Allonge. Defendants argue that the Allonge is not an adequate instrument to assign the Note because it is undated and not attached to the actual Note, and therefore it cannot be demonstrated that the Note was assigned prior to the commencement of this action (see Deutsche Bank v Haller, 100 AD3d 680, 682 [2d Dept 2012]).
Although the Allonge is undated, plaintiff has demonstrated that the Note was assigned prior to the commencement of the instant action. Colfin had previously filed a foreclosure action against the defendants on July 13, 2012 in the Eastern District of New York (the "EDNY Action"). Plaintiff attached the Allonge to its verified complaint in the EDNY Action. Plaintiff provides in its reply papers, a copy of the date-stamped verified complaint in the EDNY Action, clearly demonstrating that the Allonge was in existence prior to the commencement of the instant action. Further, physical delivery of a note prior to a commencement of an action is also sufficient to transfer the obligation (see Deutsche Bank v Barnett, 88 AD3d 636, 637 [2d Dept 2011]; see also US Bank v Collymore, 68 AD3d 752, 754 [2d Dept 2009]). In his affidavit, Riemer states that "[p]ursuant to an agreement entered into between, among others, Plaintiff and First Central, dated as of January 30, 2012, and documents executed and delivered to Plaintiff in connection therewith, Plaintiff became the owner and holder of the Loan Documents, including, without limitation, both the Note and the Mortgage". This sworn affidavit, combined with the production of the Note and Mortgage documents attached to the motion papers, is sufficient to demonstrate that plaintiff is the owner and holder of both the Note and Mortgage and that plaintiff has standing to bring this action.
In their fifth affirmative defense, defendants assert that plaintiff failed to provide proper notice of default and acceleration to the defendants prior to commencing this action. Defendants rely on the seventh paragraph of the Mortgage, which provides, in pertinent part:
Defendants' second, third, and fourth affirmative defenses assert that because First Central accepted installment payments from the defendants after June 1, 2009, the alleged date of default, and because this action was commenced more than four years after the alleged default, plaintiff is estopped from claiming default and acceleration, plaintiff has waived the default, and plaintiff should not be entitled to default interest at the rate of 24% per annum. Defendants claim that First Central accepted a number of installment payments from Borrower after June 2009, and attach several checks dated May 25, 2011, April 30, 2011, July 9, 2011, July 30, 2011, August 26, 2011, and December 31, 2012, to their opposition papers, thereby creating an issue of fact as to the date of default. Although plaintiff claims, and defendants do not dispute, that no installment payments have been made by the Borrower since Colfin acquired the Loan, in light of the denial of plaintiff's instant motion, the merit of defendants' remaining affirmative defenses need not be addressed at this time
CONCLUSIONAccordingly, plaintiff's motion for summary judgment and for appointment of a referee to compute is denied without prejudice. Plaintiff's motion to amend the caption to add Ms. Frand and delete the "John Doe" defendants is granted and plaintiff is directed to submit an order amending the caption within 20 days hereof. Plaintiff's motion for default judgment against Ms. Frand and the ECB is also granted.
This constitutes the decision and order of the court.E N T E R :
J.S.C.