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Green Tree Servicing LLC v Lopez | NYSC “there is no evidence that MERS initially physically possessed the note or had the authority from the lender to assign it”

Green Tree Servicing LLC v Lopez | NYSC “there is no evidence that MERS initially physically possessed the note or had the authority from the lender to assign it”



– against –

“JOHN DOE #1” through unknown to plaintiff, the
persons or parties intended being the tenants,
occupants, persons or corporations, if any, having
or claiming an interest in or lien upon the premises,
described in the complaint,

Upon the following papers numbered 1 to —12…. read on this motion and cross motion for summary judgment; Notice
of Motion/ Order to Show Cause and supporting papers 1- 15; Notice of Cross Motion and supporting papers 16 – 22;
Answering Affidavits and supporting papers __ ; Replying Affidavits and supporting papers 23 – 25 ; Other __ ; it is,

ORDERED that this motion by plaintiff for an order granting summary judgment on its
complaint; striking the answer of defendants Hilda Lopez and Victor Casas Bautista and dismissing their
affirmative defenses; an order of reference appointing a referee to compute the amount due and owing to
plaintiff; an amendment of the caption of this action; and awarding the costs of this motion is denied;
and 1t is further

ORDERED that the cross-motion by defendants for an order granting summary judgment in their
favor based on fraud and pla111tiffs lack of standing is denied.

This is an action to foreclose a mortgage on property known as 723 Amsterdam Avenue, East
Patchogue, New York. Defendants Hilda Lopez and Victor Casas Bautista signed a note dated July 22,
2008, for a loan in the sum of$245,000.00 from the non-party lender BankUnited, FSB. The note
indicated that the yearly interest would be 6.75 percent and the monthly payments $1,589.07. The note
was secured by a mortgage dated July 22, 2008, on the subject property which was signed by defendants
[* 1]

Hilda Lopez and Victor Casas BautIsta. The mortgage indicated that Mortgage Electronic Registration
Systems, Inc. (MERS) was acting solely as a nominee for the lender BankUnited, FSB and that for the
purposes of recording the mortgage, MERS was the mortgagee of record. The mortgage was recorded in
the Suffolk County Clerk’s Office on July 30,2008. Defendants Hilda Lopez and Victor Casas Bautista
allegedly defaulted on their loan payments due on August I, 2009 and thereafter.

Plaintiff, Green Tree Servicing, LLC, commenced this action to foreclose the mortgage on June
4, 20 10. Defendants Hilda Lopez and Victor Casas Bautista, then pro se, answered by affidavit dated
July 6, 2010. Their answer asserts claims sounding in fraud. Defendants claim that they were regularly
makrng their loan payments until they were offered a modification of their mot1gage agreement, that they
paid fees and other monies, and relied on directions to stop payments until the modification became
effective, and that they received no further instructions only to find that their mortgage was being
foreclosed. Their answer also questions the standing of plaintiff to commence this action inasmuch as
defendants state that they did not enter into a mortgage agreement with plaintiff but were infomled that
plaintiff became the servicing agent for their mortgage loan.

Plaintiff now moves for summary judgment on its complaint, to strike the answer of defendants
Hilda Lopez and Victor Casas Bautista, an order of reference appointing a referee to compute the amount
due and owing to plaintiff, an amendment of the caption of this action to add Louis Casiano as a
necessary pm1y defendant in the plaee and stead of “John Doe #1” and to discontinue the action against
defendants “Jo1m Doe #2” through “John Doe #12.” Plaintiff asserts that defendants Hilda Lopez. and
Victor Casas Bautista admit in their answer their obligation under the note and mortgage and their
default. Plaintiff indicates, upon information and belief, that defendants had hired and paid a third party
in California to assist in the modification process. Plaintiff argues that defendants have failed to submit
any proof that plaintiff made any statements or that defendants could reasonably rely on those alleged
statements to their detriment. Plaintiff also asserts that the parties engaged in settlement conferences
with defendants’ counsel in attendance, exchanged financial documents and informed of any missing
documents, and that by letter dated April 7, 2011, addressed to defendant Hilda Lopez, plaintiff advised
that it was not considering the request for a modification because she withdrew the request on April 6,
201 I. In support of its motion plaintiff submits, among other things, the pleadings, the note, mortgage
and assignment of mortgage, and notices of default. Plaintiffs submissions include the affidavit of its
vice president, William Ashley, signed and notarized in South Dakota, stating that “the said note and
mortgage are now held by the Plaintiff having been physically delivered to the Plaintiff by Mortgage
Electronic Registration Systems, Inc. as nominee of BankUnited, FSB and by BankUnited, FSB on July
22, 2008. Thereafter the said assignment of the note and mortgage was memorialized in a written
 assignment of mortgage.”

Defendants Hilda LDpez and Victor Casas Bautista cross-move for summary judgment
contending that they did not withdraw their request for a modification, that plaintiff will be unjustly
enriched if the foreclosure occurs, and that plaintiff lacks standing to commence This action. 111 SUPPOl1
of their cross motion, defendants submit their answer, the note, mortgage and assignment of mortgage,
and the letter dated April 7, 2011, from plaintiff to defendant Hilda Lopez informing her that she
withdrew her modification request one day prior.

To establish a prima fllcie showing of entitlement to judgment as a matter of law in a foreclosure
action, a plaintiff must submit evidence of the mortgagc and note, and the defcndant’s default thereunder
(see Levitill I’ Boardwalk Capital, LLC, 78 AD3d 1019,912 NYS2d 101 [2£1Dcpt 2010]). Where, as
here, a plaintiff’s standing to commence a foreclosure action is placed in issue by a defendant, it is
incumbent upon the plaintiff to prove its standing to be entitled to relief (see Citimortgage, Inc. v Stosel,
89 AD3d 887, 934 NYS2d 182 [2£1Dept 2011]). A plaintiff establishes Its standing in a mortgage
foreclosure action by demonstrating that it is both the holder or assignee of the subject mortgage and the
holder or assignee of the underlying note, either by physical delivery or by execution ofa written
assignment before commencement of the action (see id.). An assib’l1mcnt of a mortgage without
assignment of the underlying note or bond is a nullity, and no interest is acquired by it (see Deutsche
Bank Natl. Trust CO.I’ Barnett, 88 AD3d 636, 931 NYS2d 630 [2£1Oept 2011]; Bank of N. Y. v
Silverberg, 86 AD3d 274, 926 NYS2d 532 [2d Dept 2011]).

Defendants must produce evidentiary proof in admissible fonn sufficient to demonstrate the
existence of a triable issue of fact as to a bona fide defense to the action (see Argelll Mtge. Co., LLC l’
Melltesalla, 79 AD3d 1079,915 NYS2d 591 [2£1Dept 20tO]). Such defenses include waiver, estoppel,
bad faith, fraud, or oppressive or unconscionable conduct by the plaintiff (see Capstone Business
Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882, 895 NYS2d 199 [2£1Dcpt 2010]; Cochran
Illv. Co., Illc. v Jacksoll, 38 AD3d 704, 834 NYS2d 198 [2d Dcpt 2007]).

Here, plaintiff failed to establish, prima facie, that it had standing to commence the action (see
HSBC Balik USA v Hemalldez, 92 AD3d 843, 939 NYS2d 120 [2d Dept 2012]). The affidavit from
plaintiffs vice president, based on his review and personal knowledge of the facts and books and records
maintained by plaintiff in his possession, is not in admissible form inasmuch as it was signed and
notarized outside of the State of New York, and was not accompanied by the required certificate of
 conformity (see CPLR 2309 [0]; PRA UI, LLC v Gonzalez, 54 AD3d 917, 864 NYS2d 140 [2d Dcpt
2008]; see also Real Property Law § 299-a [1]). In any event, the affidavit is unclear as to which entity,
MERS or BankUnited, FSB, physically delivered the note to plainti ff so as to establish that plaintiff had
physical possession of the note prior to commencement this action (see HSBC Bank USA v Hernandez,
supra; Citimortgage, Illc. v Stosel, supra; Deutsche Bank Nat!. Trust CO. I’ Barnett, supra; Aurora
Loall Serv,”., LLC v Weisbillm, 85 AD3d 95, 923 NYS2d 609 [2d Dopt 2011]; U.s. Balik, N.A. “
Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]). This is particularly important since the
assignment only assigns the mortgage and there is no evidence that MERS initially physically possessed
the note or had the authority from the lender to assign it (see Aurora Loan Services, LLC v Weisblum,
supra). Therefore, the motion for summary judgment is denied.

With respect to the cross-motion for summary judgment by defendants Hilda Lopez and Victor
Casas Bautista, it is deficient inasmuch as it lacks a copy of the complaint as well as affidavits from
defendants Hilda Lopez and Victor Casas Bautista who have personal knowledge of the alleged
modification transaction (see Airel’ll v Shepherd, 89 AD3d 1046,933 NYS2d 597 [2d Dept 2011]) .
CPLR 3212 (b) requires that a motion for summary judgment must be supported by, among other things,
a copy of the pleadings and an affidavit “by a person having knowledge of the facts” (see CPLR 3212
rb]; Maragos I’Sakurtli, 92 AD3d 922, 938 NYS2d 908 [2£1Dept 2012]; id.). Although the motion
papers indicate that defendants’ counsel was present at the settlement conferences, it is unclear from the
cross-motion papers, which do not contam an affinnation in support in proper form by defendants’
counsel, whether defendants’ counsel had any personal knowledge concerning the alleged modification
Iransactlon (see Rizzo l’ Rizzo, 277 AD 888, 97 NYS2d 779 [2d Dept 1950]; compare Davey v DO/WI, 46
AD3d 854, 851 NYS2d 576 [2d Dcrt 2007]). Therefore, the cross-motion for summary judgment is

Accordingly. the motion for summary judgment, an order of reference, and related relief~and the
cross-motion for summary Judgment are denied.

Dated: March 28, 2012

Hon. Joseph Farneti
Acting Justice Supreme Court

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