Opinion
609013/16
09-17-2018
M & T BANK, Plaintiff, v. Dominick IMPROTA, Christine Improta Improta f/k/a Christine Coraggio a/k/a Christine Craggio, Green Tree Servicing, LLC, New York State Department of Taxation and Finance, Civil Enforcement Co-ATC, "John Doe #1-50" and "Mary Roe #1-50", the last two names being fictitious, said parties intended to name all other parties who may have some interest in, or lien upon the premises described in the complaint, Defendants.
Attys. For Plaintiff, 950 New Loudon Rd. - Ste. 109, Latham, NY 12110, PAUL H. RETHIER, ESQ. Atty. For Defendant Dominick Improta, PO Box 307, Sound Beach, NY 11789, JAMES SPIESS, ESQ. Guardian Ad Litem for Christine Improta, PO Box 757, Riverhead, NY 11901
Attys. For Plaintiff, 950 New Loudon Rd. - Ste. 109, Latham, NY 12110, PAUL H. RETHIER, ESQ.
Atty. For Defendant Dominick Improta, PO Box 307, Sound Beach, NY 11789, JAMES SPIESS, ESQ.
Guardian Ad Litem for Christine Improta, PO Box 757, Riverhead, NY 11901
Thomas F. Whelan, J.
ORDERED that this motion (# 003) by the plaintiff for summary judgment, accelerated judgments, amendment of the caption to reflect all served defendants, and the appointment of a referee to compute, is granted; and it is further
ORDERED that the branch of plaintiff's motion seeking a declaratory judgment regarding the lien position of the funds disbursed pursuant to the defendants' separate Loan Modification Agreement with co-defendant Green Tree Servicing is denied with leave to renew; 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)(2).
This is an action to foreclose a mortgage on residential property situate in Rocky Point, NY. In essence, on May 11, 2006, defendant Christine Improta, borrowed $109,000.00 from plaintiff and executed a Home Equity Account Agreement ("HEAA") and a Home Equity Line of Credit Account Individual Mortgage ("HELCAIM"). Defendant, Dominick Improta, also signed the HEAA and HELCAIM solely in his capacity of property owner. The defendants defaulted on December 9, 2014, by failing to pay the monthly installments due and owing. This action was commenced by filing on June 15, 2016. Defendant, Dominick Improta, appeared by filing an answer, through counsel, alleging five affirmative defenses. The plaintiff filed a motion (# 001) seeking leave serve the summons and complaint upon defendant, Christine Improta, by publication, and for the appointment of a Guardian ad Litem. The motion was denied by Order dated May 3, 2017 (Mayer, J.S.C.). The plaintiff filed a new motion (# 002) on May 10, 2017, which was granted by Order dated September 13, 2017 (Mayer, J.S.C.). Service was thereafter completed by publication. The appointed guardian ad litem filed an answer on Ms. Improta's behalf, containing general denials. Because Ms. Improta, the sole borrower, was not a resident of the property, no foreclosure settlement conference was held.
On March 5, 2018, plaintiff moved (# 003) for summary judgment as against the answering defendants, default judgments against the remaining defendants, amendment of the caption, and the appointment of a referee to compute. The matter was subsequently reassigned to this Part pursuant to Administrative Order No. 32-18 dated April 19, 2018, and the motion was submitted for decision on August 3, 2018.
In the moving papers on this summary judgment motion, plaintiff addresses its burden of proof and refutes the affirmative defenses of the answer. Therefore, plaintiff has satisfied its prima facie burden on this summary judgment motion (see HSBC Bank USA, Natl. Assn. v. Espinal , 137 A.D.3d 1079, 28 N.Y.S.3d 107 [2d Dept. 2016] ; U.S. Bank Natl. Assn. v. Cox , 148 A.D.3d 962, 49 N.Y.S.3d 527 [2d Dept. 2017] ). The burden then shifts to the defendants (see Bank of America, N.A. v. DeNardo , 151 A.D.3d 1008, 58 N.Y.S.3d 469 [2d Dept. 2017] ) and it was incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting plaintiff's prima facie showing or in support of the affirmative defenses asserted in the answer or otherwise available to defendants (see Flagstar Bank v. Bellafiore , 94 A.D.3d 1044, 943 N.Y.S.2d 551 [2d Dept. 2012] ; Grogg Assocs. v. South Rd. Assocs. , 74 A.D.3d 1021, 907 N.Y.S.2d 22 [2d Dept. 2010] ; Wells Fargo Bank v. Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681 [2d Dept. 2010] ; Washington Mut. Bank v. O'Connor , 63 A.D.3d 832, 880 N.Y.S.2d 696 [2d Dept. 2009] ; J.P. Morgan Chase Bank, NA v. Agnello, 62 A.D.3d 662, 878 N.Y.S.2d 397 [2d Dept. 2009] ; Aames Funding Corp. v. Houston , 44 A.D.3d 692, 843 N.Y.S.2d 660 [2d Dept. 2007] ).
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] ).
Defendant, Dominick Improta's opposition alleges that plaintiff has failed to negotiate in good faith and requests the Court to direct plaintiff to take part in further settlement conferences. The Court addresses this allegation herein, however, in accordance with the above, all affirmative defenses raised in the answer and not addressed in the opposition are dismissed as abandoned (see JPMorgan Chase Bank, Natl. Assn. v. Hua , 160 A.D.3d 821, 76 N.Y.S.3d 82 [2d Dept. 2018] ). Defendant, Christine Improta's answer, which consists of a general denial, is thus dismissed in total.
CPLR 3408(a) requires a court-supervised foreclosure settlement conference take place in "any residential foreclosure action involving a home loan," which term is defined in RPAPL § 1304 as, inter alia, a loan in which "[t]he borrower is a natural person" ( RPAPL § 1304[6][a][1], emphasis added). With regards to participation in the conferences, CPLR 3408(f) requires the parties to negotiate in good faith to reach a mutually agreeable resolution (see Citimortgage, Inc. v. Nimkoff , 159 A.D.3d 869, 869-870, 73 N.Y.S.3d 577 [2d Dept. 2018] ; CPLR 3408 [f]; U.S. Bank N.A. v. Sarmiento , 121 A.D.3d 187, 200, 991 N.Y.S.2d 68 [2d Dept. 2014] ; Wells Fargo Bank, N.A. v. Meyers , 108 A.D.3d 9, 966 N.Y.S.2d 108 [2d Dept. 2013] ). To conclude that a party failed to negotiate in good faith during foreclosure settlement conferences, a court must determine that "the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution" ( Citimortgage, Inc. v. Nimkoff , 159 A.D.3d at 870, 73 N.Y.S.3d 577, supra, citing U.S. Bank N.A. v. Sarmiento , 121 A.D.3d at 203, 991 N.Y.S.2d 68 , supra ; Aurora Loan Servs., LLC v. Diakite , 148 A.D.3d 662, 663, 48 N.Y.S.3d 490 [2d Dept. 2017] ; LaSalle Bank, N.A. v. Dono , 135 A.D.3d 827, 828, 24 N.Y.S.3d 144 [2d Dept. 2016] ; U.S. Bank N.A. v. Smith , 123 A.D.3d 914, 916, 999 N.Y.S.2d 468 [2d Dept. 2014] ).
In the case at bar, Mr. Improta opines that he is entitled to a foreclosure settlement conference by virtue of his signature on the loan documents and because he is a resident at the property. The Court disagrees. First, the terms of the loan documents specifically provide that Mr. Improta signed as owner of the property, and notes that he "does not have the right to obtain the loans on the Agreement, and is agreeing only to be legally bound by the terms of the Agreement relating to the Mortgage, to the Mortgaged Property, and to insurance on the Mortgaged Property." By definition, therefore, Mr. Improta is not a borrower. Thus, while CPLR 3408 mandates conferences between "parties" in foreclosure action, "the purpose of holding settlement discussions pertain[s] to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to determining whether the parties can reach a mutually agreeable resolution" (see also Uniform Rule § 202.12—a[c][2] ). The parties must have the ability to enter into an enforceable agreement pertaining to the loan documents. Here, Mr. Improta signed those documents in limited capacity as owner, and does not have that capability. Thus, as Ms. Improta does not reside at the premises, and Mr. Improta is not a borrower pursuant to the terms of the loan documents, no settlement conference is required in this matter.
The Court notes that, while certain legislative enactments impose duties upon the plaintiff and the borrower in mortgage foreclosure actions to negotiate in good faith to resolve the claim by a settlement, that is aimed at keeping the borrower in his or her home, if possible (see CPLR 3408 ). Such a mandate does not authorize the court to force a settlement upon either side. Additionally, this court is unaware of any statutory or controlling appellate case authorities that requires negotiation in good faith imposed by CPLR 3408 to extra-judicial, communications occurring after the CPLR 3408 conference processes are concluded, and the defendant has pointed to none in his submissions on this motion. Further, as noted above, the answering defendant is not the borrower on the loan and thus plaintiff is not under any obligation to modify the terms of the loan agreements with him. The claims that the plaintiff failed to negotiate in good faith are thus rejected (see PNC Bank, Natl. Assn. v. Campbell , 142 A.D.3d 1147, 38 N.Y.S.3d 234 [2d Dept. 2016] ; CitiMortgage Inc. v. Pugliese , 143 A.D.3d 659, 38 N.Y.S.3d 576 [2d Dept. 2016] ; Bank of New York Trust Co., N.A. v. Chiejina , 142 A.D.3d 570, 36 N.Y.S.3d 512 [2d Dept. 2016] ). As such, the complained of conduct does not warrant a hearing (see CPLR 3408[f] ; see also Hudson City Sav. Bank v. Genuth , 148 A.D.3d 687, 689, 48 N.Y.S.3d 706 [2d Dept. 2017] ; CitiMortgage, Inc. v. Pugliese , 143 A.D.3d 659, 38 N.Y.S.3d 576, supra ; PNC Bank, Natl. Assn. v. Campbell , 142 A.D.3d 1147, 38 N.Y.S.3d 234, supra.
Based on the above, plaintiff has satisfied its prima facie burden on this summary judgment motion (see HSBC Bank USA v. Ozcan , 154 A.D.3d 822, 64 N.Y.S.3d 38 [2d Dept. 2017] ; HSBC Bank USA, Natl. Assn. v. Espinal , 137 A.D.3d 1079, 28 N.Y.S.3d 107 [2d Dept. 2016] ), and the defendant's opposing papers are insufficient to defeat the plaintiff's demonstration of its entitlement to the relief requested. The Court thus grants plaintiff's motion for an order appointing a referee to compute, granting it default judgments as against all non-appearing defendants, and to amend the caption (see CPLR 3212, 3215, 1003 and RPAPL § 1321 ; Wells Fargo Bank, N.A. v. Ali , 122 A.D.3d 726, 995 N.Y.S.2d 735 [2d Dept. 2014] ; Central Mtge. Co. v. McClelland , 119 A.D.3d 885, 991 N.Y.S.2d 87 [2d Dept. 2014] ; Peak Fin. Partners, Inc. v. Brook , 119 A.D.3d 539, 987 N.Y.S.2d 916 [2d Dept. 2014] ; Plaza Equities, LLC v. Lamberti , 118 A.D.3d 688, 986 N.Y.S.2d 843 [2d Dept. 2014] ).
The branch of plaintiff's motion seeking an Order subordinating the Loan Modification Agreement between defendants, Christine Improta and Dominick Improta and Green Tree Servicing, LLC's modification to plaintiff's lien is denied, with leave to renew. Plaintiff fails to demonstrate its entitlement to such an Order, in law or equity. This portion of plaintiff's motion is therefore denied, with leave to renew.
The proposed order of reference, as modified by the court, has been signed simultaneously with this memorandum decision and order.