JP MORGAN CHASE BANK, Appellant, v ALBA MUNOZ et al., Defendants, and MARK O’CONNOR, Respondent.
Appellate Division of the Supreme Court of New York, Second Department
927 N.Y.S.2d 364 | 85 A.D.3d 1124
2011
Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiffs motion which was for summary judgment dismissing the affirmative defense of the defendant Mark O’Connor of lack of personal jurisdiction, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In 2004, the property at issue in this foreclosure action was owned by Alfredo Zambrano, and the defendant Mark O’Connоr was injured on the property. In December 2004, Zambrano conveyed ownership of the property to his daughter, Alba Munoz. In January 2005, O’Connor commenced an action against Zambrano to recover damages for the personal injuries he sustained on the subject property. In September 2005, while that action was pending, Munoz obtained a mortgage loan from Premium Capital Funding, LLC (hereinafter Premium). In July 2006, O’Connor obtained a default judgment against Zambrano and filed a judgment lien against the subject property. Premium evеntually transferred its mortgage interest to the plaintiff, which commenced this foreclosure action after Munoz stopped making payments on the mortgage.
O’Connor, the only defendant who filed an answer, аsserted two affirmative defenses and three counterclaims, alleging that the Zambrano-Munoz convеyance was fraudulent and that the plaintiff knew or should have known of facts sufficient for it to conduct an inquiry into the circumstances surrounding that conveyance. O’Connor alleged that his judgment lien had priority over the plaintiffs mortgage. He also alleged as an affirmative defense that the court lacked рersonal jurisdiction over him. The plaintiff moved, inter alia, for summary judgment dismissing O’Connor’s affirmative defenses and counterclaims, arguing, among other things, that it was protected from O’Connor’s claims of a superior interеst because its assignor, Premium, was a bona fide mortgagee without notice of the alleged fraud. The Supreme Court denied the aforementioned branches of the plaintiffs motion. We modify.
The Supreme Cоurt properly denied that branch of the plaintiffs motion which was for summary judgment dismissing O’Connor’s affirmative defensеs and counterclaims alleging the priority of his interest over the plaintiff’s mortgage. “A
Here, where there is a claim of a priority interest based on an earlier fraudulent conveyance, the plaintiff bears the initial burden on its motion for summary judgment to establish its prima facie entitlement to protection as an assignee of a good faith mortgagee (see Morris v Adams, 82 AD3d 946, 947 [2011]). The plaintiff was required to show that its assignor, Premium, had no knowledge of the alleged fraud or of facts that would have led a reasonable mortgagee tо make inquiry of the possible fraud at the time the mortgage was entered into with Munoz (id.). The only evidence submitted by the plaintiff to establish lack of knowledge or notice of the alleged fraud was the affidavit of its оwn employee, who claimed only to have had personal knowledge of relevant facts bаsed on documents in the loan file kept in the plaintiffs ordinary course of business. He failed, however, tо give an adequate and full description of the contents of the loan file and the information known оr not known to Premium. The statements in the affidavit were vague, conclusory, and not fully supported by documentary evidence. Under the circumstances of this case, the plaintiff failed to meet its prima facie burden of establishing that its assignor was a bona fide mortgagee. Accordingly, this Court need not consider the sufficiency of the opposing papers on that issue (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
However, the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment dismissing O’Connor’s affirmative defense of lack of personal jurisdiction. “[A]n objection that the summons and complaint . . . was not properly served is wаived if, having raised such an objection in a pleading, the objecting party does not move for judgment оn that ground within sixty days after serving the pleading” (
The parties’ remaining contentions are without merit, or need not be reached in light of our determination. Prudenti, P.J., Eng, Hall and Lott, JJ., concur.