Opinion
15598/2009
03-21-2012
HSBC Bank USA, N.A., etc., v. Andre Baksh, et al.
For the Plaintiff: Hogan Lovells US, LLP, by Allison J. Schoenthal, Eva L. Dietz, Renee Garcia, Michael E. Blaine, Esqs. For the Defendant Andre Baksh: Roberta Chambers, Esq.
For the Plaintiff: Hogan Lovells US, LLP, by Allison J. Schoenthal, Eva L. Dietz, Renee Garcia, Michael E. Blaine, Esqs.
For the Defendant Andre Baksh: Roberta Chambers, Esq.
Charles J. Markey, J.
Plaintiff HSBC Bank, USA, N.A., moves for an order dismissing defendant Andre Baksh's counterclaims with prejudice; granting summary judgment; ordering a reference in the plaintiff's favor; granting permission to treat the defendant Baksh's answer and counterclaims as a limited notice of appearance entitling his counsel to receive, without prior notice, a copy of the notice of sale, notice of discontinuance, and notice of surplus monies, if any; amending the caption on this action by substituting Camesha Baksh for the defendant sued herein as "John Doe;" appointing a referee to determine the amount due to HSBC and to determine whether the premises foreclosed can be sold in parcels; providing the all non-appearing defendants be deemed in default, and said defaults be fixed and determined; declaring invalid and extinguishing the lien which appears to be adverse to the mortgage being foreclosed, including the lien of non-appearing defendant Huntington National Bank successor by merger to Sky Bank successor by merger to Union Federal Bank of Indianapolis, pursuant to RPAPL Article 15.
Plaintiff commenced this action by filing a copy of the summons and complaint with notice of pendency on April 23, 2010. Plaintiff seeks to foreclose on a mortgage on the subject real property known as 197-17 100th Avenue, Hollis, in Queens County, New York, to secure repayment of a note, evidencing a loan in the original principal amount of $437,750 with interest extended to defendant Andre Baksh as record owners by Opteum Financial Services, LLC.
Plaintiff alleges that it is the holder of the mortgage and underlying obligation, pursuant to an assignment , and that the defendants defaulted under the terms of the mortgage and note by failing to make the monthly installment payment due in November 2008, and as a consequence, it elected to accelerate the entire mortgage debt.
On a motion for summary judgment in a foreclosure action, a plaintiff must make a prima facie showing by producing the mortgage, the unpaid note, bond or obligation and the evidence of default and the assignment of the mortgage documents to it (see, EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2nd Dept. 2002]; IMC Mtge. Co. v Griggs, 289 AD2d 294 [2nd Dept. 2001]; Paterson v Rodney, 285 AD2d 453 [2nd Dept. 2001]; see also, Bercy Investors, Inc. v Sun, 239 AD2d 161 [1st Dept. 1997]).
In support of the motion for summary judgment against defendants, the plaintiff offers a copy of the pleadings, affidavits of service, a copy of the subject mortgage, underlying note, assignments, and the affidavit of Kyle N. Campbell, Default Litigation Specialist for Wells Fargo Bank, N.A., successor by merger to Wells Fargo Home Mortgage, Inc. d/b/a America's Servicing Company, servicing agent for the plaintiff.
The submissions establish plaintiff's prima facie entitlement to summary judgment as against the defendants (see, EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370, supra; IMC Mtge. Co. v Griggs, 289 AD2d 294, supra; Paterson v Rodney, 285 AD2d 453, supra; see also, Bercy Investors, Inc. v Sun, 239 AD2d 161, supra). The burden shifts to the defendants to raise a triable issue of fact regarding their defenses (see, Household Fin. Realty Corp. of New York v Winn, 19 AD3d 545, 546 [2nd Dept. 2005]; Cochran Inv. Co. v Jackson, 38 AD3d 704, 705 [2nd Dept. 2007]; Barcov Holding Corp. v Bexin Realty Corp., 16 AD3d 282 [1st Dept. 2005]; EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370, supra; First Nationwide Bank, FSB v Goodman, 272 AD2d 433 [2nd Dept. 2000]).
The affirmative defenses pled by the defendant Andre Baksh must be dismissed. The first affirmative defense alleges that lack of proper service of process and that the plaintiff failed to serve the defendant with proper service of process. The defendant denies adequate service of process. Inasmuch as the defendant failed to raise this defense within sixty days of raising it in his answer, it has been waived (CPLR 3211[e]; Dimond v Verdon, 5 AD3d 718 [2nd Dept. 2004]).
In any event, sworn affidavits of service confirm that Baksh was properly served. The defendant Andre Baksh has offered nothing to rebut or dispute the veracity or contents of the affidavit of service (see, Manhattan Sav. Bank v Kohen, 231 AD2d 499, 500 [2nd Dept. 1996], lv. to appeal denied, 91 NY2d 802 [1997]).
The second affirmative defense is that the plaintiff failed to provide the defendant with a notice of default and intent to accelerate as required by the mortgage. This plaintiff provided evidence that a proper notice of default was mailed to the defendant on January 4, 2009.
The third affirmative defense is that the plaintiff failed to provide the defendant Andre Baksh with legitimate and non-predatory access to debt management and relief, in accordance with the Pooling and Servicing Agreement. Inasmuch as the defendant Andre Baksh is not a party to the contract or an intended third-party beneficiary of the contract, he does not have standing to bring a claim under the contract (see, Griffin v DaVinci Dev., LLC, 44 AD3d 1001 [2nd Dept. 2007]; accord, Galvin Brothers, Inc. v Town of Babylon, 91 AD3d 715, 716 [2nd Dept. 2012]). The plaintiff, moreover, submitted evidence that it did in fact provide the defendant with debt management and relief as defendant was approved for a HAMP trial period.
The fourth affirmative defense is that the plaintiff failed to act in good faith or deal fairly with the defendant. This allegation is not supported by any evidence. A defense that merely pleads conclusions of law without supporting facts is insufficient and fatally deficient (see, Becher v Feller, 64 AD3d 672 [2nd Dept. 2009]).
The fifth affirmative is that the plaintiff had unclean hands due to its failure to comply with terms of the mortgage. The defendants did not put forth any admissible proof for this equitable defense.
The sixth affirmative defense is that illegal charges were added to the balance. Such a claim is not a defense to the action, but rather a dispute to the amount and therefore is not a defense to a foreclosure, but rather a matter for the referee. Furthermore, the evidence submitted by the plaintiff belies the defendant's allegations.
The seventh and eighth affirmative defenses amount to a challenge as to the standing of the plaintiff. Once a plaintiff's standing is placed in issue by the defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see, U.S. Bank, N.A. v Sharif, 89 AD3d 723 [2nd Dept. 2011]). A plaintiff establishes that it has standing where it demonstrates that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note (Bank of New York v Silverberg, 86 AD3d 274 [2nd Dept. 2011]; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95 [2nd Dept. 2011]). An assignment of the mortgage without assignment of the underlying note or bond is a nullity (Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636 [2nd Dept. 2011]). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation (U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2nd Dept. 2009]).
The plaintiff, in the present case, submitted a copy of the note endorsed by the original lender to the plaintiff along with the affidavit of Kyle N. Campbell, attesting that the note was physically transferred and delivered to Wells Fargo as custodian for HSBC Bank, on or about April 1, 2007, and has not been further transferred. The plaintiff has further submitted an assignment of the mortgage to HSBC Bank. Therefore, HSBC Bank has shown that it was the holder of the note and mortgage at the time of commencement of this action.
The counterclaims asserted by Andre Baksh are without merit and must be dismissed. The first counterclaim is for declaratory and injunctive relief and alleges that the plaintiff failed to provide access to special troubled loan servicing. A request for declaratory and injunctive relief is not an independent cause of action. In any event, the facts alleged underlying the first cause of action does not support any counterclaim. The defendant's second counterclaim, alleging a violation of the Federal Truth in Lending Act, lacks any facts sufficient to support such a cause of action (see, Glassman v Zoref, 291 AD2d 430 [2nd Dept. 2002]).
Plaintiff, therefore, is entitled to summary judgment in its favor against defendant Andre Baksh (see, Fed. Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [2nd Dept. 1997]; DiNardo v Patcam Serv. Station, 228 AD2d 543 [2nd Dept. 1996]). Those branches of the motion by plaintiff for summary judgment in its favor against defendant Andre Baksh and to strike the affirmative defenses and counterclaims of the defendant Andre Baksh are, accordingly, granted.
That branch of the motion to extinguish the lien of Huntington National Bank as successor by merger to Sky Bank successor by merger to Union Federal Bank of Indianapolis and deem the lien invalid under RPAPL Article 15 is granted without opposition.
That branch of the motion by plaintiff for leave to amend the caption as proposed, is granted.
That branch of the motion by plaintiff for leave to appoint a referee is granted.
Settle order, including an appropriate decretal paragraph with the full name of the amended caption.
Dated: March 21, 2012
J.S.C.