817 F. Supp. 2d 57
N.D.N.Y.2011Background
- Mortgage and security interest on 4 Skyline Drive, Saugerties, NY; suitability for foreclosure action; principal loans consolidated; GA-note and personal guaranty pursuant to 2007 documents; default occurred December 2009 and notices sent May 12, 2010; Receiver appointed August 26, 2011; NYSDTF defaulted in action and sought default judgment; plaintiff moved for summary judgment, default judgment, and appointment of a referee; court granted summary judgment on foreclosure, denied deficiency against Martin, and granted default judgment against NYSDTF; referee to compute amount due.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice sufficiency under acceleration clause | Notice adequate; acceleration without prior notice allowed | May 2010 letter was not proper default notice | Notice adequate; acceleration implied by language and service suffices |
| Standing to foreclose after assignment | Plaintiff remained holder of mortgage and note at suit filing; transfer does not require substitution | Assignment to third party requires substitution | No substitution; standing remains with plaintiff at filing; no real issue |
| Authenticity/validity of Note and Assignment | Note and Mortgage produced; assignments valid; no fraud shown | Possible defects in Allonges/assignment dates; authenticity disputed | Questions of fact exist; summary judgment on this issue denied as to Note/Assignment |
| Personal Guaranty enforceability against Martin | Martin signed a Personal Guaranty for the Consolidated Mortgage; liable for amounts | Guaranty authenticity and scope disputed; absent original guaranty; amended notes not referencing guaranty | Issues of fact preclude summary judgment on guaranty; denial with leave to renew |
| Amount due and appointment of referee; default judgment | Referee to compute amount due under Note/Mortgage; RPAPL 1321 authority | Disputes as to amount and sales procedure exist | Referee appointed to compute amount due; summary judgment granted for foreclosure |
Key Cases Cited
- Gould v. McBride, 36 A.D.2d 706 (1st Dep’t 1971) (authenticity of documents; issues of fact for trial)
- Greyhound Exhibitgroup v. E.L.U.L. Realty, 973 F.2d 155 (2d Cir. 1992) (document authenticity considerations; summary judgment standards)
- First Nat’l Bank of Highland v. J & J Milano, Inc., 160 A.D.2d 670 (2d Dep’t 1990) (affirmative showing required to defeat foreclosure)
- Resolution Trust Corp. v. Hidden Ponds Phase IV Dev. Assoc., 873 F.Supp. 799 (E.D.N.Y. 1995) (reference on appointment of referee and related procedures)
- U.S. Bank N.A. v. Madero, 80 A.D.3d 751 (2d Dep’t 2011) (standing requires holder of mortgage and note at filing)