Opinion
64333/13
05-09-2018
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR HOLDERS OF the FIRST FRANKLIN MORTGAGE LOAN TRUST 2006–FF7, MORTGAGE PASS–THROUGH CERTIFICATES SERIES 2006–FF7, Plaintiff, v. Anita L. DORMER, Arnold R. Dormer, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for Nationpoint, a Division of Nat. City Bank of In, and "John Doe #1" to "John Doe #10", the last 10 names being fictitious and unknown to plaintiff, the person or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants.
McGLINCHEY STAFFORD, PLLC, Attys. For Plaintiff, 112 West 34th St.—Ste. 1403, New York, NY 10120 MORTNER LAW OFFICE, Attys. For Defendants Dormer, 40 Wall St., New York, NY 10005
McGLINCHEY STAFFORD, PLLC, Attys. For Plaintiff, 112 West 34th St.—Ste. 1403, New York, NY 10120
MORTNER LAW OFFICE, Attys. For Defendants Dormer, 40 Wall St., New York, NY 10005
Thomas F. Whelan, J.
Upon the following papers numbered 1 to 9 read on this motion to renew and reargue ; Notice of Motion/Order to Show Cause and supporting papers 1—2 ; Notice of Cross Motion and supporting papers:; Opposing papers: 3 ; Reply papers; Other 4 (memorandum); 5 (reply memorandum); 6 (memorandum); 7 (post trial memorandum); 8 (post trial memorandum); 9 (trial minutes) ; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (# 002) by plaintiff for an order granting renewal of plaintiff's prior motion for summary judgment and related relief is granted; and it is further
ORDERED that, upon renewal, plaintiff's motion (# 001) for, among other things, summary judgment against the answering defendant, default judgment against the remaining defendants, and the appointment of a referee to compute, is granted in its entirety; and it is further
ORDERED that the proposed Order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further
ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5–b(h)(3).
This foreclosure case was reassigned to this part on January 8, 2018 as a result of the Hon. Daniel Martin's retirement. A review of the court's computerized records reveals that the action was commenced by filing on December 4, 2013. The defendants, Anita Dormer and Arnold Dormer, filed an answer through counsel on February 20, 2014. The plaintiff thereafter moved (# 001) for summary judgment against the answering defendants, accelerated judgments against the non-answering defendants, and for the appointment of a referee to compute. The defendants opposed the motion, and oral argument was held.
On May 12, 2016, the Court issued an Order (Martin, A.J.S.C.) denying the motion and directing a trial on the issue of plaintiff's standing. The decision was based on what the Court perceived to be plaintiff's failure to provide evidence that the individual who specifically endorsed the note on behalf of the original lender to First Franklin Financial Corporation, and then on behalf of First Franklin Financial Corporation was authorized to do so, thus plaintiff failed to meet its prima facie burden. Pending the scheduling of trial, the plaintiff filed the instant motion (# 002) to renew the summary judgment motion, which the defendants opposed.
The trial took place before Judge Martin on September 6, 2017, and the decision was reserved. The case was then transferred to this Part, however a post-trial decision had not been rendered and the instant motion (# 002) remained undecided. This Court held a conference with the parties on February 22, 2018 and the motion was subsequently submitted for decision on March 23, 2018.
The plaintiff seeks leave to renew its prior motion for summary judgment and, upon renewal, summary judgment as against the answering defendants. A motion for leave to renew pursuant to CPLR 2221(e)"shall be based upon new facts not offered on a prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion" ( Mellon v. Izmirligil , 88 A.D.3d 930, 931 N.Y.S.2d 667 [2d Dept. 2011] ; Siegel v. Monsey New Sq. Trails Corp. , 40 A.D.3d 960, 836 N.Y.S.2d 678 [2d Dept. 2007] ). Alternatively, a motion for renewal may rest upon a demonstration "that there has been a change in the law that would change the prior determination." ( CPLR 2221[e][2] ).
The plaintiff bases its renewal motion on several decisions handed down by the Appellate Division, Second Department subsequent to Judge Martin's May 12, 2016 Order. Plaintiff primarily relies on the November 30, 2016 decision in CitiMortgage, Inc. v. McKinney , 144 A.D.3d 1073, 42 N.Y.S.3d 302 (2d Dept. 2016), where the Court held that the plaintiff was not required to submit proof that the person who endorsed the note was authorized to do so. Additionally, the Court found that plaintiff had sufficiently demonstrated its status as holder of the note at the time the foreclosure action was commenced with its submission of an affidavit of plaintiff's employee who averred to plaintiff's physical possession of the note when the action was commenced. Based on this holding, plaintiff surmises that the prior motion should be renewed, as the denial of plaintiff's motion was based on what the Court perceived as lack of evidence that the individual who specifically endorsed the note on behalf of the original lender to First Franklin Financial Corporation, and then on behalf of First Franklin Financial Corporation, had authority to do so. The defendant disagrees, noting that the holding in CitiMortgage, Inc. v. McKinney is unavailing and does not otherwise constitute a change in the law.
The Court finds that plaintiff has established its entitlement to renewal based on a change in law, and thus grants the renewal request. The prior determination concerned almost exclusively the authority of the individual who signed the endorsements. The Court in CitiMortgage, Inc. v. McKinney made clear that a signature on a negotiable instrument is presumed to be genuine or authorized (see UCC 3–307 [1][b] ), therefore the plaintiff is not required to submit proof that the person who endorsed the subject note, in blank or especially in favor of the plaintiff, was authorized to do so (see CitiMortgage, Inc. v. McKinney , 144 A.D.3d 1073, 42 N.Y.S.3d 302, supra ) dispensing of any issues of fact. Further, the establishment of the plaintiff's actual possession of the mortgage note or its constructive possession through an agent on a date prior to the commencement of the action is so conclusive that it renders unavailing any claims of content defects in allonges (see U.S. Bank v. Askew , 138 A.D.3d 402, 27 N.Y.S.3d 856 [1st Dept. 2016] ). It further renders unavailing all claims of content defects in the chain of mortgage assignments (see Aurora Loan Servs., LLC v. Taylor , 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ; CitiMortgage, Inc. v. McKinney , 144 A.D.3d 1073, 42 N.Y.S.3d 302, supra ; JPMorgan Chase Bank, Natl. Assn. v. Weinberger , 142 A.D.3d 643, 37 N.Y.S.3d 286 [2d Dept. 2016] ; Flagstar Bank, FSB v. Mendoza , 139 A.D.3d 898, 32 N.Y.S.3d 278 [2d Dept. 2016] ; Deutsche Bank Natl. Trust v. Naughton , 137 A.D.3d 1199, 28 N.Y.S.3d 444 [2d Dept. 2016] ; Deutsche Bank Natl. Trust Co. v. Whalen , 107 A.D.3d 931, 969 N.Y.S.2d 82 [2d Dept. 2013] ).
Notwithstanding the above, the plaintiff also demonstrated its standing as assignee by virtue of physical possession of the note at commencement of the action. The submission of the affidavit of Kyra Schwartz, an employee of plaintiff's counsel, avers that she received the note on October 9, 2013. Additionally, annexed to the filing of December 4, 2014, is a true and accurate attorney-certified copy of the note. Based on these findings, the Court finds that the plaintiff, through its submissions, has demonstrated the requisite possession of the note prior to the commencement of the action (see Wells Fargo Bank, N.A. v. Frankson , 157 A.D.3d 844, 66 N.Y.S.3d 529 [2d Dept. 2018] ; Bank of N.Y. Mellon v. Burke , 155 A.D.3d 932, 64 N.Y.S.3d 114 [2d Dept. 2017]. Therefore, the affirmative defenses addressed to standing are dismissed (see U.S. Bank Natl. Assn. v. Richard , 151 A.D.3d 1001, 57 N.Y.S.3d 509 [2d Dept. 2017] ; Silvergate Bank v. Calkula Prop., Inc. , 150 A.D.3d 1295, 56 N.Y.S.3d 189 [2d Dept. 2017] ; Central Mtge. Co. v. Jahnsen , 150 A.D.3d 661, 56 N.Y.S.3d 107 [2d Dept. 2017] ; Bank of America, N.A. v. Barton , 149 A.D.3d 676, 50 N.Y.S.3d 546 [2d Dept. 2017] ). Pursuant to CPLR 3212(g), the court hereby declares that the issue of the plaintiff's standing is hereby resolved in favor of the plaintiff for all purposes of this action.
The Court notes that the remaining affirmative defenses in defendants' answer were not raised in opposition to plaintiff's summary judgment motion (# 001). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v. Baiden , 36 N.Y.2d 539, 369 N.Y.S.2d 667, 330 N.E.2d 624 [1975] ; see also Madeline D'Anthony Enter., Inc. v. Sokolowsky , 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept. 2012] ; Argent Mtge. Co., LLC v. Mentesana , 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2d Dept. 2010] ). In addition, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus without any efficacy (see New York Commercial Bank v. J. Realty F Rockaway, Ltd. , 108 A.D.3d 756, 969 N.Y.S.2d 796 [2d Dept. 2013] ; Starkman v. City of Long Beach , 106 A.D.3d 1076, 965 N.Y.S.2d 609 [2d Dept. 2013] ).
Therefore, the Court grants plaintiff's motion to renew (# 002) in its entirety. The proposed order of reference, as modified by the court, has been signed simultaneously with this memorandum decision and order.