Opinion
2021–01217, 2021–01218 Index No. 70327/15
08-16-2023
GREEN TREE SERVICING, LLC, respondent, v. Devinda R. FERANDO, etc., et al., defendants, Manil S. Fernando, appellant.
Solomon Zabrowsky, New York, NY, for appellant. Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista of counsel), for respondent.
Solomon Zabrowsky, New York, NY, for appellant.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, BARRY E. WARHIT, LILLIAN WAN, JJ.
DECISION & ORDER In an action to cancel and vacate a satisfaction of mortgage, the defendant Manil S. Fernando appeals from (1) an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated January 5, 2021, and (2) an order and judgment (one paper) of the same court, also dated January 5, 2021. The order granted the plaintiff's motion, in effect, for summary judgment on the complaint insofar as asserted against that defendant. The order and judgment, inter alia, granted the same relief to the plaintiff, and canceled and vacated the satisfaction of mortgage. ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the order and judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondent.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment in this action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).
In July 2001, the defendants Devinda R. Ferando and Manil S. Fernando (hereinafter together the defendants) executed a mortgage on certain real property located in New Rochelle. The mortgage was in favor of Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for GMAC Mortgage Corporation (hereinafter GMAC), and secured a note in the amount of $260,000. The mortgage (hereinafter the 2001 mortgage) was recorded in the office of the Westchester County Clerk on August 8, 2001. On October 30, 2004, the defendants executed an additional mortgage (hereinafter the 2004 mortgage) in favor of MERS, as nominee for GMAC, securing a note in the amount of $50,727.43. On that same date, the defendants also executed a consolidation, extension, and modification agreement (hereinafter CEMA), whereby the first and second mortgages and their underlying notes were consolidated, resulting in a single lien in the amount of $300,000 that was in favor of MERS as nominee for GMAC. The 2004 mortgage and the CEMA, along with the consolidated note and consolidated mortgage, were recorded in the office of the Westchester County Clerk on March 18, 2005. Subsequently, MERS, as nominee for GMAC, executed a satisfaction of mortgage dated January 6, 2006, which stated that it had received payment in full of the $260,000 indebtedness and the 2001 mortgage had been satisfied. The satisfaction of mortgage allegedly was recorded in the office of the Westchester County Clerk in March 2006.
In about December 2015, the plaintiff, as GMAC's purported assignee, commenced this action against the defendants and others, inter alia, to cancel and vacate the satisfaction of mortgage. In June 2016, the Supreme Court, inter alia, granted the plaintiff's motion for summary judgment on the complaint, and issued a judgment, inter alia, canceling and vacating the satisfaction of mortgage. On Fernando's appeal, this Court reversed the judgment and denied the plaintiff's motion insofar as asserted against Fernando, on the ground that the plaintiff failed to submit evidence establishing that the satisfaction of mortgage was erroneously or fraudulently issued (see Green Tree Servicing, LLC v. Ferando, 172 A.D.3d 1010, 102 N.Y.S.3d 46 ).
Thereafter, the plaintiff filed the instant motion, in effect, seeking summary judgment on the complaint insofar as asserted against Fernando. In support of the motion, the plaintiff submitted, among other things, the affidavit of a foreclosure manager of the plaintiff's loan servicer, who averred that the satisfaction of mortgage was mistakenly issued. Annexed as exhibits to the affidavit were, among other things, the loan payment history for the consolidated note, which showed that, in January 2006, more than $295,000 of the principal balance remained owing, that payments continued to be made on the consolidated loan for several years thereafter, and that a balance of more than $257,000 remained owing at the time of the filing of the complaint. Fernando opposed the motion, arguing that the plaintiff failed to submit evidence establishing that the satisfaction of mortgage was erroneously or fraudulently issued, and that the action was time-barred. In an order dated January 5, 2021, the Supreme Court granted the plaintiff's motion. In an order and judgment, also dated January 5, 2021, the court, inter alia, granted the plaintiff's motion and cancelled and vacated the satisfaction of mortgage. Fernando appeals.
"Where, as here, balances of first mortgage loans are increased with second mortgage loans and CEMAs are executed to consolidate the mortgages into single liens, the first notes and mortgages still exist and may be assigned to other lenders" ( Benson v. Deutsche Bank Natl. Trust, Inc., 109 A.D.3d 495, 498, 970 N.Y.S.2d 794 ; see Bank of Am., N.A. v. Schwartz, 199 A.D.3d 975, 978, 158 N.Y.S.3d 198 ). Thus, the 2001 mortgage was not extinguished by the defendants’ execution of the CEMA.
A mortgagee may have an erroneous discharge or satisfaction of mortgage set aside where the underlying mortgage debt has not been satisfied and there has not been any detrimental reliance on the erroneous recording (see Bank of Am., N.A. v. Schwartz, 199 A.D.3d at 978, 158 N.Y.S.3d 198 ; New York Community Bank v. Vermonty, 68 A.D.3d 1074, 1076, 892 N.Y.S.2d 137 ). Here, there are no allegations of detrimental reliance on the satisfaction of mortgage. Further, Fernando does not contest the admissibility of the business records submitted by the plaintiff in support of its motion for summary judgment (see generally CPLR 4518 ; Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 205, 97 N.Y.S.3d 286 ). Those records established that the 2001 mortgage has not been satisfied, that the balance due under the loan remains outstanding, and that the satisfaction of mortgage was erroneously issued (see Bank of Am., N.A. v. Schwartz, 199 A.D.3d at 978, 158 N.Y.S.3d 198 ; Wells Fargo Bank, N.A. v. Douglas, 186 A.D.3d 532, 534, 129 N.Y.S.3d 102 ; Mortgage Elec. Registration Sys., Inc. v. Smith, 111 A.D.3d 804, 806, 975 N.Y.S.2d 121 ). In opposition to the plaintiff's prima facie showing, Fernando failed to raise a triable issue of fact as to whether the satisfaction of mortgage was erroneously issued (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
Fernando's remaining contentions are either improperly raised for the first time on appeal, without merit, or academic in light of our determination.
BRATHWAITE NELSON, J.P., GENOVESI, WARHIT and WAN, JJ., concur.