[*1]
Bank of Am., N. A. v Johnson
2014 NY Slip Op 51445(U) [45 Misc 3d 1203(A)]
Decided on September 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014
Supreme Court, Queens County


Bank of America, National Association, Plaintiff,

against

Jerry Johnson a/k/a JERRY E. JOHNSON a/k/a JERRY ENOS JOHNSON; CURLINE JOHNSON; WASHINGTON MUTUAL BANK, A FEDERAL ASSOCIATION; NYC DEPARTMENT OF FINANCE PARKING VIOLATIONS BUREAU PAYMENT AND ADJUDICATION CENTER OF QUEENS; CRIMINAL COURT OF THE CITY OF NEW YORK; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; KENNETH BENJAMIN; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; "JOHN DOE" and "JANE DOE," said names being fictitious, it being the intention of plaintiff to designate any and all occupants of premises being foreclosed herein, Defendants.




702173/2013
Robert J. McDonald, J.

The following papers numbered 1 to 15 were read on this motion by the plaintiff, Bank of America, National Association, for an order striking the answer with affirmative defenses of defendants Jerry Johnson and Curline Johnson; granting summary judgment pursuant to CPLR 3212; 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



Numbered



Notice 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 affirmative defenses of defendants Jerry Johnson and Curline Johnson; granting summary judgment against defendants Jerry Johnson and Curline Johnson on the grounds that the answer contains no valid defense 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 85-39 Avon Street, Jamaica Estates, New York, 11432. Based upon the record before this court, defendant, Jerry Johnson, entered into a mortgage with Washington Mutual Bank, FA on December 19, 2001, to secure a loan in the principal amount of $450,000.00. Defendant also executed and delivered an Adjustable Rate Note to Washington Mutual Bank, FA acknowledging the loan, the rate of interest, and the monthly installments.



On January 20, 2005, defendant Jerry E. Johnson executed an additional mortgage with Washington Mutual FA, to secure a loan in the principal amount of $132,246.27. Defendant also executed and delivered an Adjustable Rate Note to Washington Mutual Bank, FA acknowledging said loan, the rate of interest, and the monthly installments.



On January 24, 2005, a Consolidation, Extension and Modification Agreement (CEMA) was executed by defendant Jerry Johnson, in favor of Washington Mutual FA consolidating the two mortgages described above, resulting in a single lien of $560,000.00.



On October 25, 2006, Curline Johnson and Jerry Johnson, executed an additional mortgage with Washington Mutual FA to secure a loan in the principal amount of $206,405.45. Defendants also executed another Consolidation, Extension and Modification Agreement consolidating said mortgage with the prior consolidated mortgage resulting in new lien of $764,000.00.



Said mortgage, as consolidated, was assigned to plaintiff Bank of America, National Association from Washington Mutual Bank pursuant to an Assignment of Mortgage dated April 6, 2013.



The plaintiff asserts that defendants defaulted on their mortgage when they failed to make their monthly mortgage payments beginning on August 1, 2012. 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 June 11, 2013. Plaintiff asserts that it is the holder of the note and the mortgage and has complied with RPAPL § 1304 by mailing a 30 day default letter on November 7, 2012 and by serving a 90 day pre-foreclosure notice on September 10, 2012 by certified and first class mail. Counsel asserts that all of the defendants have been duly served with a copy of the summons and verified complaint.



None of the defendants answered the complaint with the exception of Jerry Johnson and Curline Johnson, who served a verified answer on July 29, 2013. Their answer contains a general denial and asserts five affirmative defenses including the failure to schedule a conference in the Residential Foreclosure Settlement Part; lack of standing to commence the action; lack of a 90 day pre-foreclosure notice; defective service of the summons and complaint; and failure to comply with the Fair Debt Collection Act, such as wrongful reporting of negative information as to their credit report.



In support of the motion for summary judgment, the plaintiff submits the affirmation of counsel, Craig K. Beiderman, Esq., the affidavit of merit of Marc A. Turner, a Vice President of JPMorgan Chase Bank, National Association; a copy of the notes, mortgages and CEMAs; 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 September 10, 2012; 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 July 22, 2013, under AO/548/10, executed by David P. Case, Esq.



In his affirmation, plaintiff's counsel asserts that pursuant to the affidavit of service, defendant Curline Johnson was personally served, pursuant to CPLR 308(1), by service upon her individually on June 29, 2013. Jerry Johnson was served pursuant to CPLR 308(2) by service upon a person of suitable age and discretion, to wit, Curline Johnson, at the defendants' [*2]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 defendants were properly served with a summons and complaint, the court has acquired personal jurisdiction.



With respect to the first affirmative defense regarding the CPLR 3408 settlement conference, plaintiff asserts that a settlement loan conference pursuant to CPLR 3408 was scheduled in the Residential Foreclosure Settlement Part on October 8, 2013. Both defendants, although duly notified of the date, failed to appear and Referee Lance Evans directed the plaintiff to file an application seeking an Order of Reference.



With respect to defendants' second affirmative defense of lack of standing, plaintiff's counsel asserts the plaintiff established through the affidavit of Mr. Turner that it was the holder of the note and mortgage when the action was commenced. In addition, the plaintiff has produced a copy of the note with a blank indorsement from Washington Mutual Bank FA. The plaintiff has also produced a written assignment of the mortgage and note from Washington Mutual to plaintiff Bank of America, National Association.



With respect to the third affirmative defense of lack of service of a 90 day pre-foreclosure notice, the plaintiff has produced a copy of the 90 day notice of intent to foreclose which was sent to the defendants by first class and certified mail on September 10, 2012.



As to the fourth affirmative defense of lack of personal jurisdiction, the affidavit of service of the process server constitutes prima facie evidence that both Jerry Johnson and Curline Johnson were validly served pursuant to CPLR 308(1) and(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 defendants' failure to move for dismissal on this ground within 60 days of interposing the answer (see CPLR 3211[e]).



With respect to the fifth affirmative defense of violation of Fair Debt Collection Act, plaintiff asserts that defendants have failed to allege or provide a factual affidavit supporting these defenses (see Glenesk v Guidance Realty Corp., 36 AD2d 852 [1971], abrogated on other grounds by Butler v Catinella, 58 AD3d [*3]145 [2008]; MacIver v George Braziller, Inc., 32 Misc 2d 477 [1961]; CPLR 3018[b]).



In his affidavit in support of the motion, Marc Turner, Vice President at JPMorgan Chase, states that based upon his personal review of the servicing records, plaintiff is in possession of the original CEMA and note and was in possession of same at the time of the filing of the complaint. He also states that defendants defaulted under the terms of the Mortgage by failing to make monthly payments as of August 1, 2012. He states that the unpaid principal balance as of February 20, 2014 was $706,308.96. The total due with interest and taxes, hazard insurance and other costs is $795,403.37. He states that his review of the records reveals that a notice of default was sent to the defendants on November 7, 2012 and a 90 day pre-foreclosure notice was mailed to the defendants by certified and first class mail on September 10, 2012.



This Court finds that plaintiff has made a prima facie showing that it is entitled to a judgment of foreclosure and sale. 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]).The plaintiff demonstrated proper service of the summons and complaint and showed by admissible evidence that it had properly been assigned the note and mortgage as of the date of the commencement of the action. In addition, the plaintiff has submitted sufficient proof to show that notices were served on the defendant in compliance with RPAPL §§ 1303 and 1304..



In addition, 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.



Defendants have opposed the motion alleging that at the time of the first settlement conference, Mr. Johnson was incarcerated and Mrs Johnson appeared in Court to obtain an adjournment. Counsel asserts that a second conference was held in February 2014 at which time plaintiff appeared as did defendants counsel, Denrick Cooper, Esq. In an affirmation, Mr. Cooper states that he was not able to appear at the foreclosure conference scheduled for October 8, 2013. He states that Curline Johnson asked for an adjournment. He stated that he appeared at a second conference on February 27, 2014 at which time plaintiff sought to terminate the conference. Counsel now requests that the case be sent back to the Residential Foreclosure Settlement Part so that his clients can seek a loan modification. The defendants have not filed any affidavits in support of the opposition.



This Court finds that the evidence submitted by the plaintiff including a copy of the note endorsed in blank and an affidavit from Marc Turner stating that based upon his personal review of the records, plaintiff was in possession of the note and mortgage at the time the action was commenced is sufficient to establish 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. 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]).The affirmations submitted by defense counsel are not sufficient to raise a question of fact as to any of the circumstances surrounding the settlement conference or whether the defendants have raised a meritorious defense.



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 [*4]AD3d 590 [2d Dept. 2007], lv dismissed 10 NY3d 791 [2008]).



Therefore, the plaintiff's motion for summary judgment is granted and the affirmative defenses contained in the defendants' 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.



However, the granting of the within motion does not in any way eliminate the possibility that in the future a short sale, loan modification, forbearance, reinstatement and/or workout agreement may be entered into should the defendants so qualify.



Order of Reference signed contemporaneously herewith.



Dated: September 17, 2014

Long Island City, NY



______________________________

ROBERT J. MCDONALD

J.S.C.