[*1]
JPMorgan Chase Bank v White
2014 NY Slip Op 51342(U) [44 Misc 3d 1225(A)]
Decided on September 2, 2014
Supreme Court, Queens County
McDonald, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 2, 2014
Supreme Court, Queens County


JPMorgan Chase Bank, NATIONAL ASSOCIATION, Plaintiff,

against

Lawrence White, CRISTELL WHITE, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, TJT FINANCIAL SERVICES LLC, CRIMINAL COURT OF THE CITY OF NEW YORK, CITIBANK (SOUTH DAKOTA) NA, PEOPLE OF NEW YORK STATE, CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD, CITY OF NEW YORK DEPARTMENT OF TRANSPORTATION PARKING VIOLATIONS BUREAU, CITY OF NEW YORK TRANSIT AUTHORITY TRANSIT ADJUDICATION BUREAU, and JOHN DOE and JANE DOE No.1 through #7, the last seven(7) names being fictitious and unknown to the plaintiff, the persons or parties intended being the tenants, occupants, persons or parties, if any, having or claiming and interest in or lien upon the mortgaged premises described in the complaint, Defendants.




18979/2013
Robert J. McDonald, J.

The following papers numbered 1 to 15 were read on this motion by the plaintiff for an order striking the answer with and affirmative defenses and counterclaim of defendants Lawrence White and Cristell White; granting summary judgment pursuant to CPLR 3212, in favor of the plaintiff for the relief demanded in the verified complaint; for an order granting a default judgment pursuant to CPLR 3215 against all other non-answering defendants; for an order amending the caption; and for an order pursuant to RPAPL § 1321 appointing a referee to ascertain and compute the amount due to the plaintiff;

Papers



NumberedNotice of Motion-Affidavits-Exhibits.................1 - 7



Affirmation in Opposition-Affidavits ................8 - 11



Reply Affirmation...................................12 - 15



In this mortgage foreclosure action, plaintiff moves for an order striking the answer with counterclaims and affirmative defenses of defendants Lawrence White and Cristell White; granting summary judgment against defendants Lawrence White and Cristell White on the grounds that the answer contains no valid defense or counterclaim and that no triable issue of fact exists; granting a default judgment against the remaining defendants who have not answered; appointing a referee to compute the sums due and owing to plaintiff; and amending the caption.



This foreclosure action pertains to the property located at 153-22 11th Road, Jamaica, New York, 11433. Based upon the record before this court, defendants, Lawrence White and Cristell White, entered into a mortgage with Professional Mortgage Bankers Corp. on October 10, 2003, to secure a loan in the principal amount of $196,900. Defendants also executed and delivered a note to Professional Mortgage Bankers Corp. acknowledging the loan, the rate of interest, and the monthly installments. The plaintiff asserts that defendants defaulted on their mortgage when they failed to make their monthly mortgage payments beginning in May 1, 2013. Defendants have not made any payments since that time.



The plaintiff subsequently notified the defendants of the default under the terms of the Note and Mortgage but the defendants failed to remedy their default. As a result, the plaintiff elected to accelerate the defendant's mortgage and brought an action to foreclose by filing a lis pendens and summons and complaint on October 11, 2013. Counsel asserts that all of the defendants have been duly served with a copy of the summons and verified complaint. Plaintiff also asserts that it is the holder of the note and the mortgage and has complied with RPAPL § 1304 by serving a 90 day pre-foreclosure notice on June 4, 2013 by certified and first class mail.



Defendants served a verified answer on December 6, 2013 containing a general denial and asserting twelve affirmative defenses and a counterclaim including statute of frauds; failure to state a cause of action; fraud and usury; lack of personal jurisdiction; lack of subject matter jurisdiction; violation of RESPA rules and regulations; lack of standing to commence an [*2]action; pending loan modification application; failure to credit payments made by the defendants; unjust enrichment; failure to serve "Help for Homeowners in Foreclosure" pursuant to RPAPL § 1303; failure to serve 90 day pre-foreclosure notice; and a counterclaim for reasonable attorneys fees and costs to defend a frivolous lawsuit.



A settlement loan conference pursuant to CPLR 3408 was held in the Residential Foreclosure Settlement Part on January 8, 2014. Defendant failed to appear and Referee Lance Evans directed the plaintiff to file an application seeking an Order of Reference.



In support of the motion for summary judgment, the plaintiff submits the affirmation of counsel, Stephen J. Vargas, Esq., the affidavit of merit of Patricia Ward, a Vice President of JPMorgan Chase Bank, National Association; a copy of the note and mortgage, copies of the affidavits of service on all the defendants; a copy of the pleadings; a copy of the 90 day notice of intent to foreclose dated June 4, 2013; a copy of the RPAPL § 1304 notice served on the defendant with the summons and complaint; and a copy of the attorney affirmation pursuant to the Administrative Order of the Chief Administrative Judge dated October 4, 2013, under AO/548/10, executed by Christopher Virga, Esq.



In his affirmation, plaintiff's counsel asserts that pursuant to the affidavit of service, the defendants, Lawrence White and Cristell White were personally served, pursuant to CPLR 308(2), on October 23, 2013 by service upon a person of suitable age and discretion, one Cheryl Baker, at the defendants' residence. Defendants, although raising lack of personal service as an affirmative defense, have not disputed the propriety of the service nor have they moved to dismiss the complaint for lack of personal jurisdiction within 60 days of service of the answer as required by CPLR 3211(e). Therefore, plaintiff asserts that as the plaintiff was properly served with a summons and complaint the court has personal jurisdiction.



As to the first affirmative defense asserting the statute of frauds, the note and the mortgage that are the subject of the action have been memorialized in writing and are annexed to the motion papers. As the note and mortgage are in writing and not performable within one year the defense of Statute of Frauds is not applicable herein.



With respect to the second affirmative defense of failure to state a cause of action, counsel states that based upon the evidence submitted, the plaintiff has made a prima facie showing that it is entitled to a judgment of foreclosure and sale. In addition, it is well settled that a plaintiff in a mortgage foreclosure action establishes a prima facie case of entitlement to summary judgment through submission of proof of the existence of the underlying note, mortgage and default in payment after due demand (see Witelson v Jamaica Estates Holding Corp. I, 40 AD3d 284 [1st Dept. 2007]; Marculescu v Ouanez, 27 AD3d 701 [2d Dept. 2006]; US. Bank Trust National Assoc. v Butti, 16 AD3d 408 [2d Dept. 2005); Layden v Boccio, 253 AD2d 540 [2d Dept. 1998); State Mortgage Agency v Lang, 250 AD2d 595[2d Dept. 1998]). Upon such a showing, the burden shifts to the defendant to produce evidence in admissible form sufficient to raise a material issue of fact requiring a trial.



Here, the plaintiff's submissions are sufficient to establish its entitlement to summary judgment against defendant mortgagors, Lawrence and Cristell White. The moving papers demonstrate, prima facie, that none of the asserted defenses set forth in the answer of defendant are meritorious and that plaintiff is entitled to summary judgment on its claims against defendants (see Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793 [2d Dept. 2012]; North Bright Capital, LLC v 705 Flatbush Realty, LLC, 66 AD3d 977 [2d Dept. 2009]; Witelson v Jamaica Estates Holding Corp. I, 40 AD3d 284 [1st Dept. 2007]; EMC Mortg. Corp. v Riverdale Assocs., 291 AD2d 370 [2d Dept. 2002]; State of New York v Lang, 250 AD2d 595 [2d Dept. 1998]). As stated above, the complaint herein sufficiently sets forth a valid cause of action for foreclosure.



The defendants have failed to plead any specific facts with which to support the third affirmative defense of fraud and usury as required by CPLR 3013.



As to the fourth affirmative defense of lack of personal jurisdiction, the affidavit of service of the process server constitutes prima facie evidence that Lawrence White and Cristell White were validly served pursuant to CPLR 308(2)(see Bank of NY v Segui, 68 AD3d 908 [2d Dept. 2009; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524 [2d Dept. 2008]; Jefferson v Netusil, 44 AD3d 621 [2d Dept. 2007]). Moreover, the defense of lack of personal jurisdiction was waived by the defendant's failure to move for dismissal on this ground within 60 days of interposing the answer (see CPLR 3211[e]).



Defendants have failed to provide a factual or legal basis to support the fifth and sixth affirmative defenses of lack of subject matter jurisdiction and violation of Real Estate Settlement Procedures Act. The defendants have failed to plead or indicate any specific rule and/or regulation which was allegedly violated by the plaintiff and defendants do not state in what manner these rules were violated.



As to the seventh affirmative defense of lack of standing, plaintiff's counsel asserts the plaintiff established that it was the holder of the note and mortgage when the action was commenced by producing a copy of the note with a blank endorsement. The note is made payable to the Chase Manhattan Mortgage Corporation Chase Manhattan Mortgage Corporation thereafter signed a blank endorsement.



The eighth affirmative defense regarding a loan modification is without merit. A pending loan modification, if any, is not a meritorious defense to the foreclosure action as there is no guarantee the borrower will qualify for a loan modification. Moreover, a foreclosing plaintiff has no obligation to modify the terms of its loan before or after a default in payment as long as it has made a meaningful effort at reaching a resolution (see US Bank N.A. v Sarmiento, 2014 NY Slip Op 05533 [2d Dept. 2014]; Wells Fargo Bank, N.A. v Van Dyke, 101 AD3d 638 [1st Dept. 2012]). Here the defendants failed to appear for the settlement conference.



Plaintiff alleges in its ninth affirmative defense that certain payments were not credited. However, disputes as to the amount owed is not a defense to the foreclosure action and my be properly determined by the referee in calculating the amounts due and owing.



With respect to the tenth affirmative defense the defendant has failed to provide a legal or factual basis showing how the plaintiff has been unjustly enriched.



In addition, Plaintiff asserts that the defendants were served with a 90 day notice pursuant to RPAPL § 1304 and with all notices in compliance with RPAPL § 1303.



In her affidavit in support of the motion, Patricia Ward, Vice President at JPMorgan Chase, states that based upon her personal review of the servicing records, plaintiff is in possession of the original note and was in possession at the time of the filing of the complaint. She also states that defendants defaulted under the terms of the Mortgage by failing to make [*3]monthly payments as of May 1, 2013 and the plaintiff elected to accelerate the loan. She states that the unpaid principal balance as of February 20, 2014 was $169,246.86. The total due with interest and taxes, hazard insurance and other costs is $181,665.68. She states that her review of the records maintained by Chase reveals that a notice of default was sent to the defendants on July 29, 2013 and a 90 day pre-foreclosure notice was mailed to the defendants by certified and first class mail on June 4, 2013.



Therefore, contrary to the plaintiff's eleventh and twelfth affirmative defenses, the plaintiff has submitted sufficient proof to show that notices were served on the defendant in compliance with RPAPL §§ 1303 and 1304.



Accordingly, the moving papers demonstrate, prima facie, that none of the asserted defenses or counterclaims set forth in the answer of defendants are meritorious and that plaintiff is entitled to summary judgment on its claims against the defendant(see State of New York v Lang, 250 AD2d 595). The burden then shifted to defendant to establish the existence of a triable issue of fact (see State Bank of Albany v Fioravanti, 51 NY2d 638, 647 [1980]). As defendants have failed to raise a material issue of fact in opposition, the plaintiff is entitled to the relief sought (see Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793[2d Dept. 2012]; Wells Fargo Bank Minn., Natl. Assn. v Perez, 41 AD3d 590 [2d Dept. 2007], lv dismissed 10 NY3d 791 [2008]).



Defendants have opposed the motion alleging that they did not receive the "Help for Homeowners in Foreclosure" notice that was to be served with the summons and complaint pursuant to RPAPL § 1303, that they did not receive two copies of the 90 day pre-foreclosure notice as required by RPAPL § 1304 and plaintiff did not have a valid assignment of mortgage. Defendants attach an affirmation stating that they are now divorced and stop making their mortgage payments in 2013.



This Court finds that the evidence submitted by the plaintiff including a copy of the note endorsed in blank and an affidavit from Patricia Ward stating that based upon her personal review of the records, plaintiff was in possession of the note and mortgage at the time the action was commenced was sufficient to confer standing to commence the action (see Bank of NY v Silverberg, 86 AD3d 274 [2d Dept. 2011][in a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced"]; U.S. [*4]Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept. 2009]). "Where a note is transferred, a mortgage securing the debt passes as an incident to the note" (Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909 [2d Dept. 2013]). Therefore, "either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation" (HSBC Bank USA v Hernandez, 92 AD3d 843 [2d Dept. 2012]). Since the mortgage passes with the debt that is evidenced by the note as an inseparable incident thereto, the plaintiff established its standing to commence the within action (see US Bank Natl. Assn. v Cange, 96 AD3d 825 [2d Dept. 2012]; U.S. Bank, NA v Sharif, 89 AD3d 723[2d Dept 2011]; Bank of New York v Silverberg, supra]).



In reply the plaintiff asserts that the affidavit of service executed by Catherine Johnson states that the defendants were served with the notice pursuant to RPAPL § 1303 on October 28, 2013. This Court finds however, that the bare an unsubstantiated denial of service lacks any specificity and is insufficient to rebut the properly executed affidavits of service (see Bank of NY Mellon v Scura, 102 AD3d 714 [2d dept. 2013]).



Further the plaintiff has annexed a copy of the 90 day foreclosure notice that was served on the defendants which contains the statutory warnings and a list of Housing Counseling Agencies in New York.



Therefore, the plaintiff's motion for summary judgment is granted and the affirmative defenses and counterclaim contained in the defendant's answer are stricken. Plaintiff is entitled to a default judgment against the non-answering defendants. Plaintiff's further application for the appointment of a referee to compute the amounts due under the subject mortgage is also granted as is the plaintiff's application for an order amending the caption substituting Cheryl Baker in place and stead of the John Doe and Jane Doe defendants



Order signed contemporaneously herewith.



Dated: September 2, 2014

Long Island City, NY______________________________

ROBERT J. MCDONALD

J.S.C.