Bank of New York Mellon v. CroninBank of New York Mellon v. Cronin
Clark, J. Appeal from an order of the Supreme Court (Crowell, J.), entered April 7, 2016 in Saratoga County, which, among other things, granted plaintiff‘s motion for summary judgment.
In 2007, defendant Suzanne Cronin executed a note in favor of America‘s Wholesale Lender in the аmount of $405,450. The note was secured by a mortgage on certain real property in the Town of Clifton Park, Saratoga County issued in favor of Mortgage Electronic Registrations Systems, Inc., as nominee for America‘s Wholesale Lender. In November 2008, Cronin entered into a loan modification agreement that increased the principal balance of the existing mortgage to $427,977.76 and, shortly thereаfter, she defaulted on the modified loan. The mortgage was assigned to plaintiff in May 2013 and, several weeks later, plaintiff commenced this mortgage foreclosure action. Cronin joined issue and asserted various affirmative defenses, including lack of standing.
In January 2015, Cronin executed a bargain and sale deed that conveyed the property to herself and defendant Robert Garassi as tenаnts in common. Supreme Court granted Garassi‘s subsequent motion to intervene pursuant to
We affirm. To establish its prima facie entitlement to summary judgment in a mortgagе foreclosure action, a plaintiff must submit the mortgage, unpaid note and evidence of the mortgagor‘s default (see Wells Fargo Bank, N.A. v Walker, 141 AD3d 986, 987 [2016]; Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737, 738 [2015]). Where, as here, a challenge is made
Here, plaintiff produced evidence of the mortgage, the loan modification agreement, the unpaid note and Cronin‘s default, thereby estаblishing its prima facie entitlement to summary judgment (see JP Morgan Chase Bank, N.A. v Venture, 148 AD3d 1269, 1270 [2017]; Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d at 738). To establish its standing to maintain the action, plaintiff proffered the affidavits of Kindra Denny, Julie Brandstetter and Kyra Schwartz. Denny, an employee of Ditech Financial LLC, plaintiff‘s attorney-in-fact, stated that plaintiff was the hоlder of the note and was assigned the mortgage prior to the commencement of this action. Brandstetter, an officer of Bаnk of America, N.A. (hereinafter BANA), plaintiff‘s prior servicing agent, averred that BANA created and maintained records in its regular coursе of business as plaintiff‘s prior servicing agent and that, based upon her review of these records, BANA had received the original note in January 2007 and the mortgage in March 2007. She stated that BANA maintained the note and mortgage in a secure file room until they were, upon request, shipped to the offices of plaintiff‘s counsel. Schwartz, an employee at that law firm, asserted that, in its ordinary course of business, the firm received loan documents from clients, created and maintained records documenting the receipt of those documents at or about the
In opposition, defendants did not produce any evidence that conflicted with, or contradicted, the factual averments contained in the affidavits of Denny, Brandstetter and Schwartz, or otherwise raise an issue of fact as to whether plaintiff was the holder of the note and the mortgage at the commencement of this action (see U.S. Bank N.A. v Carnivale, 138 AD3d at 1222; Everhome Mtge. Co. v Pettit, 135 AD3d at 1055). While Cronin argues that Supreme Court deprived defendants of the opportunity to conduct discovеry and, thus, the ability to adequately oppose plaintiff‘s motion, defendants did not offer any affidavits attesting to the existence of admissible evidence that would raise a triable issue of fact as to plaintiff‘s entitlement to summary judgment as a matter of law (see Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026 [1983]; Halsey v County of Madison, 215 AD2d 824, 824-825 [1995]; Lowrey v Cumberland Farms, 162 AD2d 777, 778-779 [1990]). Nor is the award of summary judgment to plaintiff precluded by Garassi‘s misplaced argument that plaintiff lacks the capacity to commenсe this action because it is operating as a business trust without having filed a certificate of designation. Plaintiff is the trustee of a trust fund cоnveyed by the relevant pooling and serving agreement; it is not a business trust, as that term is defined in
Garassi‘s additional argument that plaintiff failed to comply with
Garry, J.P., Lynch, Rose and Aarons, JJ., concur. Ordered that the order is affirmed, without costs.