JPMorgan Chase Bank, N.A. v Nola | mortgage voided because the power of attorney used at the closing was not properly initialed

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JPMorgan Chase Bank, N.A. v Nola | mortgage voided because the power of attorney used at the closing was not properly initialed

JPMorgan Chase Bank, N.A. v Nola | mortgage voided because the power of attorney used at the closing was not properly initialed

SUPREME COURT – STATE OF NEW YORK
I.A.S. PART 7 – SUFFOLK COUNTY

PRESENT:
WILLIAM B. REBOLINI
Justice

JPMorgan Chase Bank, National Association,
Plaintiff,

– against –

Gregory J. Nola, Nancy S. Nola,
Clerk of the Suffolk County District Court;
Cori J. Nola, “John Does” and “Jane Does”, said
names being fictitious, parties intended being
possible tenants or occupants of premises, and
corporations, other entities or persons who claim,
or may claim, a lien against the premises,
Defendants.

Attorney for Defendants:
Young Law Group, PLLC
80 Orville Drive, Suite 100
Bohemia, New York 11716

EXCERPT:

In support of her cross-motion for summary judgment dismissing the complaint as asserted
against her, defendant Nancy Nola has demonstrated her entitlement to judgment as a matter oflaw
(see Zuckerman v New York, supra). Ms. Nola states in her personal affidavit, among other things,
that she was advised by her attorney that subdivisions (A) and (R) were not initialized on the durable
power of attorney form as required by the statute in effect at the time it was executed. The form
explicitly required her to place her initials in designated spaces on the form to indicate her “choices”
with respect to the specific powers granted to her agents. Inasmuch as the subdivisions were marked
with an “x” Ms. Nola avers that the durable power of attorney was not valid. In addition, defendant
Nancy Nola contends that she was not aware that she was the co-borrower on the loan, and was not
served with the 90-day notice pursuant to RP APL 1304.

In opposition to the cross-motion, the plaintiff submits the personal affidavit of Tisha
Denney, Assistant Secretary for plaintiff, and several loan applications. Ms. Denney avers that
multiple loan modification applications were submitted bearing the signatures of Gregory Nola and
Nancy Nola. These applications were dated August 26, 2009/September 8, 2009; November 17,
2009/November22, 2009; January 18, 2011 ; February 11 , 2011; March 1, 2011 and March 31 , 2011,
and annexes copies of the applications. In addition, plaintiff states that Nancy Nola’s allegations that
she was unaware of the loan transaction are belied by her continued involvement with the loan when
she signed several applications to modify the loan. In addition, Nancy Nola admitted that she
submitted her financial information to the plaintiff to help her son through the loan modification
process. The power of attorney specifically gave power to apply and close on the contemplated loan
as by its explicit language. Moreover, plaintiff contends that it was not required to serve the 90-day
notice upon Nancy Nola inasmuch as the premises was not her primary residence. The Court agrees.

However, with regard to the validity of the power of attorney, “if the designated spaces are
not initialed, no authority is granted” (Matter of Marriott, 86 AD3d 943, 927 NYS2d 269 [4th Dept
2011 ]). Therefore, regardless of whether Nancy Nola executed the loan applications, since she did
not effectively authorize Gregory Nola to execute the note as her power of attorney, the power of
attorney is fatally defective and Nancy Nola cannot be held liable for payment on the note.
Accordingly, defendant Nancy Nola’s cross-motion for summary judgment dismissing the complaint
as asserted against her is granted, and the plaintiff’s motion for summary judgment as against
defendant Nancy Nola is denied.

In sum, plaintiffs motion for summary judgment on its complaint is granted only against
defendants Gregory Nola and Cori Nola. Defendant Nancy Nola’s cross-motion is granted solely
to the extent that the complaint is dismissed as asserted against her, and all other requested relief is
denied. The remaining motion by plaintiff for a protective order and defendant Nancy Nola’s crossmotion
to strike the complaint are denied as academic.

Based upon the foregoing, the plaintiffs motion for summary judgment is granted solely
against the defendants Gregory Nola and Cori Nola, whose answer is dismissed. That branch of the
motion seeking to fix the defaults as against the remaining defendants who have not answered or
appeared herein is granted. Plaintiffs request for an order of reference appointing a referee to
compute the amount due to plaintiff under the note and mortgage is also granted (Green Tree
Servicing LLC v Cary, 106 AD3d 691, 965 NYS2d 511 [2d Dept 2013]). Defendant Nancy Nola’s
cross-motion for summary judgment is granted only to the extent that the complaint is dismissed as
asserted against her, the action is severed and shall otherwise continue against the remaining
defendants. In addition, the Court finds that further discovery is not necessary at this juncture and
denies the plaintiffs motion for a protective order and the defendants’ cross-motion to strike the
complaint as academic.

The proposed order appointing a referee to compute pursuant to RP APL 3121, as modified
by the Court, is signed simultaneously herewith.

~

H/T to Young Law Group, PLLC

Young Law Group

~

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