Opinion
No. 2022-00523 Index No. 55510/19
05-22-2024
Dusanka Novakovic, appellant, v. Wells Fargo Bank, N.A., respondent, et al., defendants.
Charles A. Higgs, White Plains, NY, for appellant. Troutman Pepper Hamilton Sanders LLP, New York, NY (Stephen J. Steinlight of counsel), for respondent.
Charles A. Higgs, White Plains, NY, for appellant.
Troutman Pepper Hamilton Sanders LLP, New York, NY (Stephen J. Steinlight of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.
DECISION & ORDER
In an action, inter alia, pursuant to RPAPL article 15 to quiet title to certain real property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated December 10, 2021. The order granted that branch of the motion of the defendant Wells Fargo Bank, N.A., which was for summary judgment dismissing the complaint insofar as asserted against it and denied the plaintiff's cross-motion for summary judgment on the complaint insofar as asserted against that defendant.
ORDERED that the order is affirmed, with costs.
The plaintiff married her husband in 1967. In 1978, the plaintiff and her husband purchased certain residential property in Westchester County (hereinafter the property), and the plaintiff has lived at the property ever since. In 2007, Wachovia Bank, National Association (hereinafter Wachovia), a predecessor to the defendant Wells Fargo Bank, N.A. (hereinafter Wells Fargo), issued a prime equity line of credit (hereinafter the note) to the plaintiff's husband, which was secured by a home equity line of credit mortgage on the property (hereinafter the mortgage). At the time Wachovia issued the mortgage, the plaintiff and her husband continued to own the property as tenants by the entirety. The mortgage agreement reflects that both the plaintiff and her husband were listed as grantors on page 1, that the plaintiff's husband signed page 12 of the mortgage agreement before a notary on July 6, 2007, and that the plaintiff signed page 15 of the mortgage before a notary on October 31, 2007. Pages 1, 2, 12, 13, and 15 of the mortgage agreement, which include the pages signed by the plaintiff, her husband, and the notaries who witnessed their signatures, contain a reference number listed in the lower right corner. This reference number matches the account number assigned by Wachovia to the plaintiff's husband's loan application and also appears on the note. The mortgage agreement, bearing both the plaintiff's and her husband's signatures, was recorded on December 17, 2007.
On July 4, 2016, the plaintiff became the sole owner of the property when her husband died. Immediately thereafter, on July 27, 2016, the plaintiff signed a Wells Fargo authorization for automatic transfer in order to make monthly payments on the mortgage. She continued to make monthly payments on the mortgage for four years.
The plaintiff commenced this action, inter alia, pursuant to RPAPL article 15 to quiet title to the property. Although a copy of the recorded mortgage agreement was purportedly attached to the complaint, the complaint alleged that the plaintiff was not a party to the mortgage agreement, and because her deceased husband "no longer has an interest in the property, there is no property interest against which the [mortgage] can attach."
Wells Fargo moved for summary judgment dismissing the complaint insofar as asserted against it, contending that the plaintiff's notarized signature on the mortgage agreement established her consent to the mortgage encumbering her ownership interest in the property. In support of its motion, Wells Fargo submitted an affidavit sworn by Gwen R. Smalley, a Wells Fargo vice president, and a transcript of the deposition testimony of Stephanie Bradford, a Wells Fargo loan verification consultant. In her affidavit, Smalley averred that she was familiar with Wells Fargo's record-keeping practices, that Wells Fargo obtained the note and began servicing the subject loan in March 2010, and that when Wells Fargo became the servicer for the mortgage, "the data received from the prior servicer['s] system(s) of record were boarded into Wells Fargo's system of record, were then kept in the ordinary course of Wells Fargo's business, and have been relied on in the conduct of Wells Fargo's business at all times since acquisition."
Smalley explained, based on her review of attached business records, that the loan was originally intended to be in the plaintiff's husband's name alone because the plaintiff's ownership interest in the property was not disclosed on the loan application. Shortly thereafter, Wachovia discovered that the plaintiff was on the deed and required that the plaintiff be added to the mortgage so that both record owners' interests would be mortgaged. On July 25, 2007, Wachovia sent a letter to the plaintiff's husband detailing this issue. A third-party vendor employed by Wachovia sent a letter dated October 17, 2007, to the plaintiff's husband addressed to the property requesting that the plaintiff sign an acknowledgment of the mortgage debt. Smalley averred that the plaintiff executed an acknowledgment in the presence of a notary, which was included in the recorded mortgage package. Bradford's deposition testimony largely mirrored the statements in Smalley's affidavit.
Wells Fargo further submitted a copy of the recorded mortgage agreement and a transcript of the plaintiff's deposition testimony in support of its motion. At her deposition, the plaintiff admitted that her signature appeared on page 15 of the mortgage, but testified that she could not remember signing the mortgage agreement. In response to a question as to whether she remembered the notary who acknowledged her signature on page 15 of the mortgage agreement, the plaintiff testified, "I just remember I never sign [the] mortgage. I know that."
The plaintiff opposed Wells Fargo's motion and cross-moved for summary judgment on the complaint insofar as asserted against Wells Fargo. In support of her cross-motion, the plaintiff submitted, among other things, an affidavit in which she denied signing the mortgage agreement and certain business records from Wachovia, which purported to establish that Wachovia had disbursed the loan funds to the plaintiff's husband prior to the plaintiff allegedly signing the mortgage agreement.
In an order dated December 10, 2021, the Supreme Court granted Wells Fargo's motion and denied the plaintiff's cross-motion. The plaintiff appeals.
In an action to quiet title pursuant to RPAPL article 15, the movant must establish, prima facie, that it holds title, or that the nonmovant's title claim is without merit (see X & Y Dev. Group, LLC v Epic Tower, LLC, 196 A.D.3d 732). As a general matter, a co-owner can only encumber its own interest in property unless it has the consent of the other co-owners (see V.R.W., Inc. v Klein, 68 N.Y.2d 560, 564; Kwang Hee Lee v Adjmi 936 Realty Assoc., 34 A.D.3d 646, 648).
"A party who executes a contract is presumed to know its contents and to assent to them" (Prompt Mtge. Providers of N. Am., LLC v Zarour, 155 A.D.3d 912, 914 [internal quotation marks omitted]; see Rubens v UBS AG, 126 A.D.3d 421, 422; Moon Choung v Allstate Ins. Co., 283 A.D.2d 468, 468). A notary's acknowledgment of a writing "is prima facie evidence that it was executed by the person who purported to do so" (CPLR 4538; see Simmons v Bell, 220 A.D.3d 647; Osborne v Zornberg, 16 A.D.3d 643, 644). Such acknowledgments "should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing as to amount to a moral certainty" (Albany County Sav. Bank v McCarty, 149 NY 71, 80; see Osborne v Zornberg, 16 A.D.3d at 644; Spilky v Bernard H. La Lone, Jr., P.C., 227 A.D.2d 741, 743).
Here, Wells Fargo established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it. Contrary to the plaintiff's contention, Smalley's affidavit provided a proper foundation for the admission of the attached business records (see U.S. Bank N.A. v Kahn Prop. Owner, LLC, 206 A.D.3d 850, 851; Bank of N.Y. Mellon v Gordon, 171 A.D.3d 197, 209). Taken as a whole, the evidence submitted by Wells Fargo established, prima facie, that the plaintiff's title claim is without merit. The plaintiff admitted at her deposition that the notarized signature on page 15 of the mortgage agreement was her own. Page 15 also contains the same reference number as pages 1, 2, 12, and 13 of the mortgage agreement and the account number assigned to the plaintiff's husband's loan application. Moreover, Smalley's affidavit, along with the attached business records, sufficiently explained why the plaintiff signed the mortgage agreement on a different date and on a different page than her husband. Further, it is undisputed that the plaintiff continued paying the monthly mortgage immediately upon her husband's death and made those payments for four years. Additionally, contrary to the plaintiff's contention, although Wells Fargo submitted in support of its motion for summary judgment, among other things, a transcript of the plaintiff's deposition testimony, which included the plaintiff's unsupported deposition testimony denying that she signed the mortgage agreement, that deposition testimony was insufficient to raise a triable issue of fact as to whether she signed the mortgage agreement (see Osborne v Zornberg, 16 A.D.3d at 644).
In opposition to Wells Fargo's prima facie showing of its entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, her conclusory and self-serving affidavit was insufficient to raise a triable issue of fact as to whether she signed the mortgage agreement (see Burns v City of New York, 181 A.D.3d 554, 556; Stennett-Bailey v Allstate Ins. Co., 167 A.D.3d 1058, 1060). Moreover, contrary to the plaintiff's contention, whether the loan proceeds were disbursed prior to the plaintiff signing the mortgage agreement is immaterial to the issue of whether the plaintiff consented to the mortgage encumbering her ownership interest in the property.
Accordingly, the Supreme Court properly granted Wells Fargo's motion for summary judgment dismissing the complaint insofar as asserted against it. For the same reasons, the court properly denied the plaintiff's cross-motion for summary judgment on the complaint insofar as asserted against Wells Fargo.
BRATHWAITE NELSON, J.P., MILLER, GENOVESI and WAN, JJ., concur.