U.S. Bank Trust N.A. v Mordente

Supreme Court, Suffolk County

Decided on May 14, 2026

Index No. 629365/2024

C. Stephen Hackeling, J.

Plaintiff, U.S. Bank Trust National Association, Not in Its Individual Capacity But Solely as Owner Trustee for RCF 2 Acquisition (hereafter the "Bank"), moves in this residential foreclosure action for an order granting it summary judgment and appointing a referee to compute (NYSCEF Doc. No. 21-47). Defendants, Joseph Mordente and Daniela Mordente (hereafter the "Borrowers") cross move pursuant to CPLR § 213 (6), for an Order dismissing the Bank's second cause of action for mortgage reformation as time barred as well as dismissing the [*2]complaint (NYSCEF Doc. No. 51-52). The Bank replies in opposition to said cross-motion and in further support of its application (NYSCEF Doc. No. 54-55). After due deliberation it is

ORDERED that the Bank's application (mot. sequence #001) seeking summary judgment and appointing referee to compute is denied; and it is further

ORDERED that Borrowers' cross-motion (mot. sequence # 002) to dismiss the Bank's complaint is denied; and it is further

ORDERED that plaintiff is directed to file a Note of Issue and Certificate of Readiness in conformity with 22 NYCRR § 202.21 on or before July 11, 2026; and it is further

ORDERED that a bench trial is scheduled for July 30, 2026 at 11:00 a.m. in person, before the Hon. C. Stephen Hackeling, J.S.C., at the Suffolk County Supreme Court located at One Court Street, Riverhead, New York 11901, Courtroom A-260; whereupon the plaintiff will appear with original exhibits in support of its prima facia case, including standing, default, and compliance with RPAPL 1304. If plaintiff satisfies its burden in this regard, then the Court will compute those amounts due under the note and mortgage without the appointment of a referee; and it is further

ORDERED that on or before July 23, 2026, the parties must electronically file on NYSCEF the following information, in letter format, where appropriate:

• Marked pleadings

• List of exhibits which the parties agree as to their admissibility;

• List of exhibits which the parties disagree as to their admissibility;

• Material to be used on cross-examination need not be listed on the exhibit list;

• List of anticipated witnesses;

• Any special requests, such as interpreters or media equipment.

and it is further

ORDERED that the parties are directed to appear on June 30, 2026 at 10:00 a.m. for a status conference to discuss any pre-trial issues.

Undisputed Facts

In June 2003, the Borrowers executed a consolidated note (the "First Note") in favor of Wells Fargo Home Mortgage, Inc., promising to repay a $256,000 loan. The First Note was secured by a mortgage on real property located at 2 Harness Court, Yaphank, New York 11980 (the "Property"). In May 2016, the Borrowers executed a modification agreement in favor of Selene Finance LP, attorney in fact for Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its individual capacity but solely as Trustee for BCAT 2015-13ATT ("Selene") modifying the First Note in the amount of $260,870.94. In April 2019, the Borrowers entered into a second modification agreement (the "Second Modification") in Selene's favor for $324,639.14 of unpaid principal. The Second Modification fixed the interest rate at 4.500% and extended the note's term to March of 2049. On May 2, 2022, the Borrowers entered into a third modification agreement (the "Third Modification") in Selene's favor and they promised to repay $348,043.80. The Third Modification extended the final payment date to May 2052 [see NYSCEF Doc. No. 24].

Summary Judgment

The Bank now moves for summary judgment striking defendants' answer and appointing a referee. In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the non-hearsay production of the mortgage, the unpaid [*3]note, and evidence of default. See Deutsche Bank National Trust Company v. Bowens, 181 AD3d 871 (2d Dept. 2020); Plaza Equities, LLC v. Lamberti, 118 AD3d 687 (2d Dept. 2014). In response, the Borrowers assert several affirmative defenses and raise triable issues of fact as to their liability under the note and mortgage and whether there exists a default under the terms of the note, mortgage, and Third Modification.

Reformation of the Legal Description

In support of their cross motion and opposition to the Bank's application for summary judgment, the Borrowers assert that the Bank's second cause of action seeking reformation of its mortgage's metes and bounds description is barred by CPLR 213(4)'s six-year statute of limitations. The Court notes that the Borrowers do not claim that the foreclosure action itself is barred by the statute of limitations. Instead, they assert that the description may not be amended in this action, making it now unsustainable as the description contains property owned by a non-party who they assert is an "indispensable party." This argument is unfounded as the Bank withdrew its reformation cause of action. But even if the Bank pressed forward with its reformation cause of action, the Court's dismissal of the second cause of action would not bar granting relief on the Bank's first cause of action seeking foreclosure.

Reforming descriptions in mortgages is similar and analogous to the reformation of deeds. "The critical element in description analysis is whether the deed description suffices for the purchaser of the property and all other interested to ascertain what property is involved . . . " Town of Brookhaven v Dinos, 76 AD2d 555 (2d Dept. 1980). "A deed description is adequate so long as it allows the property to be located, even if an actual survey is required in order to do so." Id. quoting Pope v Levy, 54 A.D. 495 (1st Dept. 1900). "The question is not whether there are errors in the description, but whether the land can be identified with reasonable certainty notwithstanding the errors, for otherwise there is no notice to subsequent purchasers searching the record." Goff v Shultis, 26 NY2d 240 (1970).

"The principle that a deed is void for lack of proper description only when it is so inaccurate that the identity of the property is wholly uncertain and that this general rule is to be applied with the utmost liberality in order to determine the intention of the parties." Town of Brookhaven v Dinos, 76 AD2d 555 (2d Dept. 1980) quoting Peck v Mallams, 10 N.Y.509 (1853). "The fact that the exact boundaries are not described in a deed does not make an instrument of conveyance from which the property can be identified void for uncertainty if it is possible by any rule of construction to ascertain what property is being conveyed." See Wendell v Jackson ex dem. People, 8 Wend. 183, 22 Am. Dec. 635 (1831).

The Bank has established that the Property is sufficiently described in the mortgage and is a valid, enforceable lien on the Property. The legal description is adequate as the Property can be identified with a reasonable degree of certainty based on the valid street address and tax lot number. The error in the metes and bounds is so de minimis that the Property can still be identified with a reasonable degree of certainty. The Property is described in the metes and bounds as being 1 foot off: 66.12 to a point and 26.00 feet a distance of 39.27 but should be 65.12 feet to a point and 25.00 feet a distance of 39.27. Regardless, the correct metes and bounds are described in both the Complaint and the Notice of Pendency giving notice to subsequent purchasers. (NYSCEF Doc. Nos. 1, 7).

THE UNRECORDED THIRD MODIFICATION

The Borrowers next assert that the Third Modification dated April 14, 2022, was never recorded and is therefore invalid. While the nonrecorded status is not conceded by the Bank, it [*4]is undisputed that the original mortgage and the first two loan modifications were recorded. Whether the Third Modification was recorded is irrelevant as to establishing the rights between the Bank and the Borrowers. The loan modification does not need to be recorded to be enforceable. See Bank of NY Mellon v. Samuels, 55 Misc 3d 704 (Sp. Ct. Orange Co. 2017)("[t]he consequences for not paying the loan modification taxes does not render the contract between the parties void. The taxing statute is procedural and not substantive in its effect. Rather, the tax statute justifies the County Clerk ... in refusing to cancel such mortgage, notwithstanding a proper satisfaction is tendered to him, until the full amount of such tax is paid. Bank of New York Mellon v Samuels citing People ex rel. Tit. Guar. & Co. v Ruoff, 159 A.D. 819, 820 (2d Dept. 1913). Whether the loan modification is admissible in evidence to establish defendants' default is another matter.

TAX LAW § 258(1)

The Borrowers also argue that the Third Modification is inadmissible evidence as there exists no proof that the mortgage recording tax was paid. In opposition to this argument, the Bank neither provides proof of recording nor addresses the merits of the argument. Rather the Bank argues Tax Law § 258 in the context of the Bank's standing — not whether the Third Modification is admissible evidence to be considered by this Court in support the Bank's foreclosure action. As discussed above, failure to pay the recording tax does not render the Third Modification void but the Bank's failure to pay the recording tax means that it cannot be received in evidence.

Tax Law § 258 states, in part, that

"[n]o mortgage of real property which is subject to the taxes imposed by this article shall be released, discharged or record or received in evidence in any action or proceeding . . . ." (emphasis added).

Here, the Bank is seeking to foreclosure on the mortgage for defendants' default under the Third Modification and obviously requires the Court to consider the Third Modification's terms to determine whether there was a default. The Court cannot conduct such an analysis without the Bank admitting the Third Modification into evidence. Its failure to pay the tax (or claim that it is entitled to an exemption from taxes) violates Tax Law § 258; the Third Modification cannot be received in evidence in this action until the tax is paid.

AFFIXED ALLONGE AND TWO § 1304 DEFAULT DATES

Lastly, the Borrowers raise several "standing challenges" and claim that the record fails to demonstrate that the endorsement of the subject Wells Fargo consolidated note was firmly affixed to it (the blank endorsement is on a separate page)[NYSCEF Doc. No. 2] and also that the Bank's employee affidavit references two default dates which would then necessitate two RPAPL § 1304 notices when only one was served. These issues appear genuinely fact dependent and will be tried along with the Bank having to prove its prima facia case and any other defense(s) raised by the Borrowers not addressed herein.

Dated: May 14, 2026

HON. C. STEPHEN HACKELING, J.S.C.