THE CIT GROUP/CONSUMER FINANCE, INC., Plaintiff,
BRUCE W. PLATT, SOLE HEIR AT LAW OF DORSEY PLATT AND MARY PLATT, AND “JOHN DOE NO. 1” THROUGH “JOHN DOE #10,” THE LAST 10 NAMES BEING FICTITIOUS AND UNKNOWN TO THE PLAINTIFF, THE PERSONS OR PARTIES INTENDED BEING THE PERSONS OR PARTIES, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE MORTGAGED PREMISES DESCRIBED IN THE VERIFIED COMPLAINT, Defendants.
A residential foreclosure conference was held on March 8, 2011, but did not result in a settlement. By order of the same date, it was determined that the action could proceed by motion.
With respect to that branch of the motion by plaintiff for summary judgment as against defendant Platt, it is well established that the proponent of a summary judgment motion “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 ). In support of its motion, plaintiff offers a copy of the pleadings, affidavits of service, an affirmation by its counsel, a copy of the subject mortgage, underlying note and allonge, assignments, and an affidavit of Paul Laird, a vice president of Vericrest Financial, Inc., the attorney in fact for plaintiff, attesting to defendant Platt’s default under the mortgage and note.
Plaintiff has failed to establish its prima facie entitlement to judgment as a matter of law. “CPLR 3212 (b) provides that a summary judgment motion shall be supported by affidavit’ of a person having knowledge of the facts’ as well as other admissible evidence (see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 )” (JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 ). The affidavit of Paul Laird is without evidentiary value insofar as the basis of his knowledge and representations regarding the mortgage documents and defendant Platt’s default in payment are not revealed or inferable (see Zuckerman v City of New York, 49 NY2d 557, 562-563 ). In addition, because the complaint is verified by counsel, who lacks personal knowledge of the facts, it also does not constitute competent evidence to stand in the place of a proper affidavit of merit (see Alvarez v Prospect Hosp., 68 NY2d at 327 ). That branch of the motion by plaintiff for summary judgment against defendant Platt is denied.
With respect to that branch of plaintiff’s motion to strike the affirmative defense asserted by defendant Platt based upon lack of standing,
“[w]here, as here, standing is put into issue by the defendant, the plaintiff must prove its standing in order to be entitled to relief (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242 ; TPZ Corp. v Dabbs, 25 AD3d 787, 789 ; see also Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 ). 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 (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 ; Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547 ; First Trust Natl. Assn. v Meisels, 234 AD2d 414 )”
Plaintiff offers a copy of an assignment executed by Bonnie McGinnis, “ASST. SECRETARY,” which purports to show the subject mortgage, together with the note, were assigned by MERS to plaintiff on April 1, 2008.
Plaintiff, however, has failed to demonstrate that MERS initially physically possessed the note or had the authority from Wilmington to assign it (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95 ). Wilmington is not a party to the assignment, and the mortgage itself does not specifically give MERS the right, as the nominee or agent of the Wilmington, to assign the underlying note (see Bank of New York v Silverberg, 86 AD3d 274 ; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95 , supra). To the extent plaintiff presents a copy of an undated allonge, executed by one “Don Malabuyo,” on behalf of Wilmington, to demonstrate the note was endorsed to it without recourse, the allonge merely indicates that Malabuyo is the “Designated Signer,” which, without more, is insufficient to show Malabuyo had the requisite authority to act on behalf of Wilmington. Moreover, to the degree plaintiff offers the affidavit of Paul Laird, a vice-president of Vericrest Financial, Inc., to show the allonge was created “[c]oncurrently” with the assignment, Laird does not indicate he had personal knowledge of the date of the execution of such allonge, or of Malabuyo’s authority. The affirmation of Michael H. Cohn, Esq., counsel for plaintiff, dated June 10, 2011, indicating Brian Casey, “Assistant Vice President,” “confirmed” to Cohn the factual accuracy of the allegations set forth in … [the] supporting affirmations filed with the Court,” cannot serve to fill these gaps in evidence. The attorney’s affirmation does not make clear to which entity Casey serves as an assistant vice-president, and in any event, to the degree it relates to when the allonge was executed and the authority of Malabuyo, it constitutes hearsay, and lacks probative value. Plaintiff additionally has failed to establish that the allonge is “so firmly affixed” to the note “as to become part thereof” (UCC 3-202; Slutsky v Blooming Grove Inn, 147 AD2d 208 ). That branch of the motion by plaintiff to dismiss the affirmative defense asserted by defendant Platt based upon lack of standing is denied.
With respect to that branch of the motion by plaintiff to dismiss the affirmative defense asserted by defendant Platt based upon failure to comply with RPAPL 1303, the version of RPAPL 1303 in effect at the time of the commencement of the action (L 2006, c 308, § 4, effective February 1, 2007, amended L 2007, c 154, § 13, effective July 3, 2007), required that “[t]he foreclosing party in a mortgage foreclosure action, which involves residential real property consisting of owner-occupied one-to-four family dwellings” provide notice to the mortgagor, in accordance with the provisions of the section, with regard to information and assistance about the foreclosure process. The statute set forth the specific language and format of the notice, requiring that the notice be “on its own page,” be “in bold, fourteen-point type,” be “printed on colored paper that is other than the color of the summons and complaint,” and have its title be in “bold, twenty-point type.” The statute also required the notice to be “delivered” with the summons and complaint in the foreclosure action (RPAPL 1303). Proper service of the notice pursuant to RPAPL 1303 is a condition precedent to the commencement of the action which is the plaintiff’s burden to meet (see First Natl. Bank of Chicago v Silver, 73 AD3d 162, 169 ; see also Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 102 , supra).
Plaintiff offers an affidavit of service dated June 6, 2008 of a licensed process server, which indicates, among other things, that attempts were made at effecting personal delivery of a copy of the summons and complaint, together with a notice required by RPAPL 1303, upon defendant Platt at his dwelling place at the mortgaged premises, on May 23, 2008, May 28, 2008 and June 4, 2008, at various stated times, and an unsuccessful inquiry was made of a neighbor to determine Platt’s place of employment. The affidavit also indicates that on June 4, 2008, at 2:17 P.M., the process server affixed copies of the summons and complaint, and the RPAPL 1303 notice, to the door of the premises, and in addition, mailed, on June 6, 2008, copies of the summons and complaint and the RPAPL 1303 notice to defendant Platt at his last known residence. Plaintiff, however, has failed to present a copy of the notice served with the copy of the summons and complaint. Under such circumstances, this court cannot determine whether plaintiff strictly complied with the requirements of RPAPL 1303. That branch of the motion by plaintiff to strike the affirmative defense based upon failure to comply with RPAPL 1303 is denied.
That branch of the motion by plaintiff to strike the affirmative defense based upon failure to comply with RPAPL 1304 is granted. Defendant Platt asserts that plaintiff failed to serve him with a notice pursuant to RPAPL 1304 prior to commencing the action. That statute was enacted and made effective after the institution of this action (see L 2008, c 472, §§ 2, 28 [approved August 5, 2008, eff. Sept. 1, 2008]). The Legislature made no explicit provision for retroactive application, and the court also is unaware of any case wherein the statute was retroactively applied to any date prior to the statute’s effective date. Thus, plaintiff was not obligated to comply with the requirements found in RPAPL 1304 as a condition precedent to bringing this action, and the affirmative defense based upon noncompliance with RPAPL 1304 is without merit.
With respect to that branch of the motion by plaintiff to dismiss the affirmative defense asserted by defendant Platt based upon alleged fraud, plaintiff offers a copy of the mortgage loan application submitted to Wilmington on behalf of defendant Platt, indicating Platt’s gross monthly income to be $8975.00. The application includes an acknowledgment by defendant Platt that the information provided therein was “true and correct,” as of February 23, 2003, and is executed by defendant Platt. Plaintiff also offers a copy of an appraisal dated February 2, 2007 of the subject premises, prepared by Ronald S. Faltz, of R & D Appraisals, LLC, and relied upon by Wilmington in financing the loan. The appraisal indicates the property had a fair market value of $615,000.00 as of February 2, 2007. Defendant Platt has failed to present any evidence to raise a triable issue of fact as to whether Wilmington, or plaintiff, committed fraud or conspired to commit fraud in the preparation of these documents, or to induce him to enter into the mortgage transaction. That branch of the motion by plaintiff to dismiss the affirmative defense asserted by defendant Platt based upon alleged fraud or conspiracy to commit fraud is granted.
With respect to that branch of the motion for leave to amend the caption deleting reference to the “John Doe” defendants, the only defendants named in the summons and complaint are defendants Platt and “John Doe #1” through “John Doe #10.” Plaintiff asserts it has been determined that defendants “John Doe #1” through “John Doe #10” are not necessary parties to the action. Plaintiff, however, presents two affidavits of service of a licensed process server dated June 6, 2008, indicating service of process upon defendants Platt and “Jane Doe #1-#30” pursuant to CPLR 308(4). Each affidavit indicates that the licensed process server spoke with one “Mr. Graham,” a neighbor, who allegedly stated that “the defendant/respondent lives at the aforementioned address but was unable to divulge the defendant’s/respondent’s place of employment.” It is unclear whether a “Jane Doe” has been joined by plaintiff as a party defendant and the caption should be amended to substitute “Jane Doe #1″” for “John Doe #1” (see Douglas v Kohart, 196 App Div 84 ; Krotchta v Green, 121 Misc 2d 471 ; see also Empire Sav. Bank v Towers Co., 54 AD2d 574 ). Plaintiff notably asserts that “all of the [d]efendants have been served with the summons and verified complaint in this action as appears by the affidavits of service on file in this action” and “[n]one of the [d]efendants have appeared herein except Bruce W. Platt” (emphasis supplied). Under such circumstances, that branch of the motion for leave to amend the caption deleting reference to the “John Doe” defendants is denied without prejudice to renewal upon a proper showing that “Jane Doe” is not a necessary party defendant.
That branch of the motion by plaintiff to substitute BoNY for it, and for leave to amend the cation to reflect the substitution is denied. A question of fact exists as to whether plaintiff has standing to bring this action, and therefore, plaintiff has failed to establish prima facie that it has standing to assign the subject mortgage and note to BoNY.
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