Opinion
602264/2015
09-28-2020
RAYMOND JAMES BANK NA, Plaintiff, v. Bruce GREENBERG, Anna Greenberg, Countrywide Home Loans, Inc., Sag Harbor Pooh LLC, Defendants.
DRUCKMAN LAW GROUP PLLC, Attorneys for Plaintiff, 242 Drexel Avenue, Westbury, NY 11590. CHARLES WALLSHEIN, ESQ., Attorney for Defendants Bruce and Anna Greenberg, 115 Broadhollow Road, Suite 350, Melville, NY 11747.
DRUCKMAN LAW GROUP PLLC, Attorneys for Plaintiff, 242 Drexel Avenue, Westbury, NY 11590.
CHARLES WALLSHEIN, ESQ., Attorney for Defendants Bruce and Anna Greenberg, 115 Broadhollow Road, Suite 350, Melville, NY 11747.
Robert F. Quinlan, J.
Upon the following submissions read on these motions combined for the purpose of this decision: defendants Bruce Greenberg and Anna Greenberg motion for summary judgment dismissing the action for failure to comply with RPAPL § 1304, for fraud and misconduct, as well as sanctions and attorney's fees: defendant's notice of motion and supporting submissions: NYSCEF Doc Nos. 74-97, 124; plaintiff's opposition: NYSCEF Doc Nos. 126-128; defendants' "opposition and reply": NYSCEF Doc Nos. 131-142; plaintiff Raymond James Bank, N.A.'s motion for summary judgment dismissing defendants' answer, and appointment of a referee pursuant to RPAPL § 1321 : plaintiff's notice of motion and supporting submissions: NYSCEF Doc Nos. 98-122; defendants' "opposition and reply": NYSCEF Doc Nos. 131-142; and plaintiff's reply: NYSCEF Doc No. 146;
UPON the telephone conference in this action held on September 8 2020 between the court and parties in compliance with the requirements of AO/157/20 of the Chief Administrative Judge of the Courts, dated July 23, 2020, and counsel for both parties having appeared; it is;
ORDERED that defendants Bruce Greenberg and Anna Greenberg's motion and plaintiff Raymond James Bank, N.A.'s motions are combined for the purpose of this decision and order; and it is further
ORDERED that defendants Bruce Greenberg and Anna Greenberg's motion for summary judgment dismissing plaintiff Raymond James Bank, N.A.'s complaint for failure to comply with the mailing requirements of RPAPL § 1304 is denied and their proposed order is marked "Not Signed;" and it is further
ORDERED that defendants Bruce Greenberg and Anna Greenberg's motion seeking dismissal of plaintiff's complaint for plaintiff's alleged fraud and misconduct, sanctions and attorney's fees is denied, with leave to renew upon conclusion of the trial in this matter; and it further
ORDERED that plaintiff Raymond James Bank, N.A. is granted partial summary judgment pursuant to CPLR 3212 (g) fixing and setting the default of the non-appearing and non-answering defendants, dismissing defendants' claims of plaintiff's failure to comply with the requirements of RPAPL § 1304 raised in opposition to plaintiff's motion for summary judgment, dismissing and striking all of defendants Bruce Greenberg and Anna Greenberg's affirmative defenses and counterclaims, except their 1st through 3rd affirmative defenses that raise plaintiff's standing to prosecute the action; and it is further
ORDERED that in all other respects plaintiff's motion is denied and its proposed order is marked "Not Signed;" and it is further
ORDERED that the court sets the action for a limited issue trial pursuant to CPLR § 2218, which shall be limited to the proof of the issue of plaintiff's standing, at which time defendants may raise their claims of plaintiff's alleged fraudulent conduct as it pertains to that issue; and it is further
ORDERED that the trial pursuant to CPLR § 2218 is set for 2:00 PM on October 8, 2020 before this part by virtual means through the court's "Skype" system; and it is further
ORDERED that the court will provide counsel for the parties with the information necessary for them to participate in a "Skype" virtual trial by notice through the court's e-filing system; and it is
ORDERED that parties are directed to submit copies of all exhibits intended to be submitted at the trial to the court and all other counsel at least 72 hours prior the trial; and it is
ORDERED that no further successive summary judgment motions are authorized.
This is an action to foreclose a mortgage on residential real property located at 4 Flint Lock Lane, East Hampton, Suffolk County, New York given by defendants Bruce Greenberg and Anna Greenberg ("defendants") to America's Wholesale Lender ("AWL"), a predecessor in interest to plaintiff Raymond James Bank, N.A. ("plaintiff"). The prior history of this action is contained in the court's decision and order placed upon the record after oral argument of plaintiff's first motion for summary judgment (Mot. Seq. #001) on January 30, 2017, a copy of which was signed "So Ordered" by the court and filed with the Suffolk County Clerk as NYSCEF Doc. #53, and also submitted as Defendants' Exhibit "D" in support of their present motion; as well as in the court's written order of January 31, 2017 (NYSCEF Doc. # 46; Defendants' Exhibit "E"), setting a hearing on the issues specified therein for March 10, 2017. After the hearing of March 10, 2017, on March 15, 2017 the court issued an order granting plaintiff's application to withdraw its motion, authorized discovery pursuant to its order placed on the record after the hearing of March 10, 2017, and authorized the parties to file further motions, including for summary judgment and dismissal, within thirty (30) days of the completion of discovery, setting a date for a compliance conference. Counsel for the parties signed a compliance conference order on February 28, 2018 (NYSCEF Doc. #61) and plaintiff filed a note of issue on March 29, 2018 (NYSCEF Doc. #62). Subsequently, after communication and a conference with counsel for the parties, the court modified the order of March 15, 2017 to authorize the parties to file further motions for summary judgment pursuant to the time set in CPLR 3212 (NYSCEF Doc. #73). Both parties filed the present motions within one hundred-twenty (120) days of the filing of the note of issue as required by CPLR 3212.
Before addressing the substantive issues raised by the parties' motions, the court addresses the submission made in both "opposition and reply" by defendants, as though plaintiff had cross-moved (Mot. Seq. #003) in response to defendants' motion (Mot. Seq. #002). Although plaintiff points out that it did not cross-move, rather moving independently of defendants' motion for its own relief, and objects to the fact that defendants "bundled" their opposition and reply into one submission, plaintiff has not established that this has prejudiced it in any substantial manner, as it has been able to both oppose defendants' motion and reply to defendants' opposition to its motion. Accordingly, the court will consider defendants' "bundled" responses.
RPAPL § 1304 COMPLIANCE
Although defendants did not raise compliance with RPAPL § 1304 as an affirmative defense, they raised a claim that plaintiff failed to abide by the notice provisions of the statute in opposition to plaintiff's first motion for summary judgment and in their present motion and opposition. RPAPL § 1304 compliance is a condition precedent that can be raised at any time by defendants, and once raised plaintiff is required to prove compliance (see First Natl. Bank of Chicago v. Silver , 73 AD3d 162 [2d Dept 2010] ; Aurora Loan Services v. Weisblum , 85 AD3d 95 [2d Dept 2011] ; Deutsche Bank Natl. Trust Co. v. Starr , 173 AD3d 836 [2d Dept 2019] ). Here, as in opposition to plaintiff's first motion, the only issue of compliance raised by defendants is the claim that plaintiff violated the prohibition contained in RPAPL § 1304 (2) that the required notices be sent to a "borrower" in an envelope by itself. Both defendants acknowledged in their affidavits submitted in opposition to the first motion, submitted again by defendants as their Exhibits "Q" and "R," and in their deposition testimony submitted by plaintiff, that they each received the certified mailing of the notices without any extraneous inclusions, and that Mr. Greenberg received the copy of the notice by regular mail without an additional enclosure. Ms. Greenberg alleges that the copy of the notice she received by regular mail also included a copy of the notice of default required by the mortgage. Defendant's counsel argues that this makes the mailings as to both mortgagors defective requiring dismissal of the action.
It is not necessary to address plaintiff's submission in opposition to this argument, as defendants' contention has been found to be erroneous. All parties acknowledge that the note was signed by Mr. Greenberg alone, Ms. Greenberg only signed the mortgage. RPAPL § 1304 requires mailing to all "borrowers," which term has been held to apply only to defendants who sign the note, not all mortgagors. As Ms. Greenberg was not a borrower, even if plaintiff's mailing to her included an extra document, it is of no moment (see Charles Schwab Bank v. Winitch , 179 AD3d 1003 [2d Dept 2020] ).
Defendants' motion seeking dismissal of plaintiff's action for failure to comply with RPAPL § 1304 is denied.
As Mr. Greenberg acknowledges receipt of the RPAPL § 1304 notices by both certified and first class mail, defendants' argument that plaintiff's motion should be denied because it failed to comply with the condition precedent of mailing required by that statute is without merit.
DISMISSAL, SANCTIONS AND ATTORNEYS FEES DENIED
Defendants' claims that plaintiff's action should be dismissed with prejudice because of alleged misrepresentations to the court, principally in plaintiff's withdrawn first motion for summary judgment (Mot. Seq. # 001), as well as the claim that plaintiff, or its counsel, should be punished for frivolous conduct are insufficient on the present record, and denied. As noted by the Court of Appeals in CDR Creances S.A.S. v. Cohen , 23 NY3d 307 [2014], relied upon by defendants, such a drastic remedy as dismissal for misrepresentations to the court should only be granted where there is a continued course of conduct over years of litigation, where a court finds by clear and convincing evidence that a litigant has repeatedly produced false and misleading statements before the court. Defendants submissions have not established the multiplicity of misrepresentations as in Cohen , supra , or established by clear and convincing evidence that the conduct here was "fraudulent" and intentional, although the court acknowledges that there are significant issues as to the "quality" of some of plaintiff's submissions in both its first motion and in the present submissions which will be addressed below.
PLAINTIFF GRANTED PARTIAL SUMMARY JUDGMENT
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment, providing affirmative proof in evidentiary form to establish as a matter of law entitlement to that relief, making clear that no material issue of fact is presented (see Sillman v Twentieth Century-Fox Film Corp. , 3 NY2d 395 [1957] ; Gilbert Frank Corp. v. Federal Insurance , 70 NY2d 966[1988] ). The failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposition (see Winegrad v. New York University Medical Center , 64 NY2d 851[1985] ; William J. Jenack Estate Appraiser and Auctioneers v. Rabizadeh , 22 NY3d 470 [2013] ; Jacobsen v. New York City Health & Hospital Corp , 22 NY3d 824 [2014] ). It has long been recognized as a general principle of summary judgment that a moving party, as well as an opponent, is required to assemble and lay bare all its proof in support, or opposition, of the motion (see Maurice O'Meara Co. v. National Park Bank of New York , 239 NY 386 [1925] ; Dodwell & Co. I.nc. v. Silverman , 234 AD 362 [1st Dept 1932] ; M & S Mercury Air Conditioning Corp. v. Rodolitz , 24 AD2d 873 [2d Dept 1965] ). Failure to do so is done at the party's risk (see Deleon v. New York City Sanitation Dept. , 25 NY3d 1102 [2015] ). In deciding the motion the court is to determine whether there are bonafide issues of fact and generally is not to delve into or resolve issues of credibility (see Vega v. Restani Corp. , 18 NY3d 499 [2012] ), unless it clearly appears that the issues are not genuine, but feigned (see Curry v. MacKenzie, 239 NY 267 [1925] ; Glick & Dolleck, Inc. v. Tri Pack Export Co. , 22 NY2d 439 [1968] ; Loughlin v. City of New York , 186 AD2d 176 [2d Dept 1992] ; Dorazio v. Delbene , 37 AD3d 645 [2d Dept 2007] ; Pryor & Mandelup, LLP v. Sabbeth , 82 AD3d 731 [2d Dept 2011] ; Carthen v. Sherman , 169 AD3d 416 [1st Dept 2019] ).
Entitlement to summary judgment in favor of a foreclosing plaintiff is established, prima facie , by plaintiff's production of the mortgage, the unpaid note, and evidence of default in payment (see Wells Fargo Bank, N.A. v. DeSouza , 126 AD3d 965 [2d Dept 2015] ; Wells Fargo, NA v. Erobobo , 127 AD3d 1176 [2d Dept 2015] ; Wells Fargo Bank, NA v. Morgan , 139 AD3d 1046 [2d Dept 2016] ). If established by proof submitted in evidentiary form, plaintiff has demonstrated its entitlement to summary judgment ( CPLR 3212 ; RPAPL § 1321 ; see Federal Home Loan Mtge. Corp. v. Karastathis , 237 AD2d 558 [2d Dept 1997] ). The burden then shifts to defendants to demonstrate the existence of a triable issue of fact as to a bonafide defense (see Capstone Bus. Credit, LLC v. Imperia Family Realty, LLC , 70 AD3d 882 [2d Dept 2010] ; Citibank, NA v. Van Brunt Properties, LCC , 95 AD3d 1158 [2d Dept 2012] ). Defendants must then produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact (see Washington Mut. Bank v. Valencia , 92 AD3d 774 [2d Dept 2012] ).
Where plaintiff's standing has been placed in issue by defendants' answer, plaintiff must also establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor , 25 NY3d 355 [2015] ; Bank of New York Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019] ; US Bank, N. A. v. Echevarria , 171 AD3d 979 [2d Dept 2019] ). In addition, where defendant has properly asserted non-compliance with the notice requirements of RPAPL § 1304 by raising it in opposition to plaintiff's motion, plaintiff must establish its compliance (see Citimortgage. Inc v. Espinal , 134 AD3d 876 [2d Dept 2015] ; Deutsche Bank Natl. Trust Co. v. Starr , 173 AD3d 836 [2d Dept 2019] ).
As indicated above, although defendants raised a claim of noncompliance with the mailing requirements of RPAPL § 1304 in opposition, as well in their motion to dismiss, only as to non-borrower Ms. Greenberg, and Mr. Greenberg acknowledged receipt of the RPAPL § 1304 notices, this claim is insufficient to defeat plaintiff's motion.
Further, plaintiff's submissions establish the note and mortgage, and although it may be said that the affidavit that plaintiff submits may be insufficient to prove defendants' default in payment, as plaintiff submitted the depositions of defendants (Plaintiff's Exhibits "S" and "T") wherein they acknowledge the existence of the note and mortgage, as well as their default in payment, all three basic elements necessary for foreclosure have been established.
As in opposition to plaintiff's first motion, defendants here fail to submit evidence in support of their counterclaims and affirmative defenses, other than their 1st through 3rd affirmative defenses, so their counterclaims and unsupported affirmative defenses are dismissed as abandoned (see Kuehne & Nagel Inc. v. Baiden , 36 NY2d 539 [1975] ; Wells Fargo Bank, N.A. v. Thomas , 150 AD3d 1312 [2d Dept 2017] ; JPMorgan Chase Bank, N.A. v. Cao, 160 AD3d 821 [2d Dept 2018] ; U.S. Bank, N.A. v. Gonzalez , 172 AD3d 1273 [2d Dept 2019] ).
Yet plaintiff fails to establish by evidence in admissible form its standing to bring the action, as it fails to prove its possession of the note at the time the action was commenced, therefore defendants' 1st through 3rd affirmative defenses cannot be dismissed ( CPLR 3212 [g] ). The court sets this action for a trial which shall be limited to the proof of that issue ( CPLR § 2218 ).
PLAINTIFF'S STANDING NOT ESTABLISHED
Plaintiff establishes its standing by demonstrating that when the action was commenced it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor , supra ; Wells Fargo Bank, NA v. Rooney , 132 AD3d 980 [2d Dept 2015] ). A written assignment or physical delivery prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident thereto (see U.S. Bank, NA v. Collymore , 68 AD3d 752 [2d Dept 2009] ; Bank of NY Mellon v. Gales , 116 AD3d 723 [2d Dept 2014] ; Bank of New York Mellon v. Lopes , 158 AD3d 662 [2d Dept 2018] ).
Although a valid assignment of the mortgage which also assigns the note establishes plaintiff's standing (see Emigrant Bank v. Larizza, 129 AD3d 904 [2d Dept 2015] ; U. S. Bank N.A. v. Akande , 136 AD3d 887 [2d Dept 2016] ; Wells Fargo Bank. N. A. v. Archibald , 150 AD3d 937 [2d Dept 2017] ), any reliance by plaintiff upon a mortgage assignment here also assigning the note must fail. The assignment of the note and mortgage from Bank of America to plaintiff (see Plaintiff's Exhibit "E") at best transferred only the mortgage, as it seems to be the second of two mortgage transfers, which among other things are not fully set forth by evidentiary proof in plaintiff's submissions on this motion.
The court notes that the Consolidation, Extension and Mortgage Agreement ("CEMA") and the consolidated mortgage (Plaintiff's Exhibits "B" and "D") were given by defendants to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for AWL merely for the recording of the mortgage. As such MERS had no authority to assign the note along with the mortgage, plaintiff provides no proof that AWL ever gave MERS the authority to assign the mortgage, let alone the note, and as this series of mortgage transfers ends with the transfer by Bank of America to plaintiff (Plaintiff's Exhibit "E") purporting to include the authority to assign the note, that assignment of the note is ineffective (see Mortgage Elec. Registration Sys., Inc. v. Coakley , 41 AD3d 674 [2d Dept 2007] ; Bank of New York v. Silverberg , 86 AD3d 274 [2d Dept 2011] ; US Bank, N.A. v. Faruque , 120 AD3d 575 [2d Dept 2014] ; Aurora Loan Servs., LLC v. Baritz , 144 AD3d 618 [2d Dept 2016] ).
An attempt by plaintiff to establish its standing through the assignments of the mortgage which purport to also assign the note fails to establish certain facts necessary, even if this chain of assignments could do so. Plaintiff's Exhibit "E" shows a series of assignments of the mortgage that plaintiff relies on to validate that assignment of the mortgage and note, yet plaintiff submits no proof of those assignments filed with the Suffolk County Clerk ("Clerk") to support this claim. Plaintiff's Exhibit "E" mentions the mortgage given by defendants through MERS as nominee to AWL dated February 2, 2002, along with the date of its recording, liber and page; as well as the second mortgage given by defendants to MERS as nominee for Countrywide Home Loan Servicing ("Countywide"), dated May 2, 2003, along with the date of its recording, liber and page. Although it could be argued that the CEMA and consolidated mortgage may make that proof on its own irrelevant, if those assignments were meant, as stated in the body of Plaintiff's Exhibit "E," to be part of an effective transfer of the mortgage and the rights to the note, they should be submitted None of these documents were produced in support of the motion.
Additionally, although a footnote in plaintiff's counsel's affirmation attempts to prove the relationship between AWL and Countrywide, a statement in an affirmation of counsel who does not establish his personal knowledge of the facts is inadmissable as proof of those facts (see US National Bank Assn. v. Melton , 90 AD3d 742 [2d Dept 2011] ; Bank of NY Mellon v. Aiello , 164 AD3d 632 [2d Dept, 2018] ). Although the court may be aware from other cases before it of the relationships between AWL and Countrywide, as well as the change of the identity of Countrywide to BAC Home Loans Servicing, LP, and the purchase/merger of BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loan Servicing by Bank of America, these facts must be established by plaintiff through evidence in admissible form in its submission, they were not.
IF ADMISSIBLE WOLFF/BRESSNER AFFIDAVIT FAILS TO PROVE STANDING
Plaintiff bases its proof of standing upon the "second" affidavit of Victoria Bressner, now know as Victoria Wolff, submitted in support of its motion. Even if the court found that affidavit to be unquestioned, and admissible pursuant to CPLR 4518 (a), it would be insufficient to establish plaintiff's standing. Her claim made therein that the assignments of the mortgages were sufficient to transfer the mortgage and note have been dealt with above and found insufficient to prove plaintiff's standing. Her statement that the Consolidated Note was indorsed in blank by Countrywide d/b/a AWL and in plaintiff's possession prior to the commencement of the action is hearsay, as she does not provide copies of the records of plaintiff she claims to have reviewed to provide this conclusion (see U.S. Bank Natl. Assn. v. 22 S. Madison LLC , 170 AD3d 772 [2d Dept 2019] ; Bank of New York Mellon v. Gordon , supra ; Acquino v. Ventures Trust 2013-I-H-R by MCM Capital Partners , 172 AD3d 663 [2d Dept 2019] ; Wells Fargo Bank, N.A. v. Springer , 179 AD3d 749 [2d Dept 2020] ). So, even if in admissible form, her affidavit fails to establish plaintiff's possession of the note prior to the commencement of the action.
QUESTION OF FACT AFFIANT ABLE TO TESTIFY TO PLAINTIFF'S RECORDS
Further, considering the issues raised at oral argument of plaintiff's first motion concerning the validity of plaintiff's submissions on that motion, the issues set for the hearing by the order of January 31, 2017, the hearing and subsequent withdrawal of plaintiff's first motion and the deposition testimony of the affiant plaintiff relied upon in its first motion and now in this motion, the court expected more than a footnote reference attempting to brush aside those issues by plaintiff's counsel who does not indicate any personal knowledge of the facts (footnote # 3, p 2 of counsel's affirmation). The submission to the court of an affidavit in which the affiant swore that she reviewed documents from "plaintiff's records" in her position as a "Vice President" of plaintiff, when her deposition testimony, submitted by both parties, states instead that those documents had been provided to her by plaintiff, or plaintiff's counsel for her review so she could sign an affidavit in her position as an "authorized signer" employed by plaintiff's servicer and not from a review of plaintiff's business records of plaintiff, requires a more sufficient explanation to this court.
There is also a question of fact as to Ms. Wolff's ability to testify as to plaintiff's records pursuant to CPLR 4518 (a). In both the affidavit submitted in support of plaintiff's first motion and that submitted in support of its present motion, she styles herself as a "Vice President" of plaintiff. In the present affidavit, unlike her earlier submissions, she refers to, and produces as an exhibit, a copy of the corporate resolution of plaintiff dated June 7, 2017 supposedly appointing her to that position.
The Business Records exception to the rule against hearsay recognizes that records made in the regular course of a business, kept in the regular course of the business, made contemporaneously and made by a person who had actual knowledge of the action or event recorded, are reliable. Generally, it is someone from the particular business where the record was made who is able to testify to those records, showing their familiarity with the business practices and procedures which would allow the records to be admitted. It is rare for an outsider to the business to be able to establish the ability to testify to another's business' records, but it is possible. A witness can establish his/her ability to testify concerning the business record of another entity by showing personal knowledge and familiarity with that entities business practices and procedures (see Citibank, N.A. v. Cabrera, 130 AD3d 861 [2d Dept 2015] ; Arch Bay Holding, LLC v. Albanese, 146 AD3d 849 [2d Dept 2017] ; Aurora Loan Svcs, LLC v. Ang , 150 AD3d 649 [2d Dept 2017] ). There are also rare cases where a court has found that the relationship between two businesses and the nature of the records, including their preparation, can give the recipient of another's records sufficient familiarity with the others records practices to justify their admissibility (see People v. Cratsley , 86 NY2d 81 [1985] ; People v. DiSalvo , 284 AD2d 547 [2d Dept 2001] ; State of New York v. 158th St & Riverside Dr. Housing Co., Inc , 100 AD3d 1293 [3rd Dept 2012] ). More recently Bank of New York, Mellon v. Gordon , 171 AD3d at 209-211 held that if a witness established that another entities' records were incorporated in its business records, regularly used and relied upon by the witness' business, those records were admissible as the business records of the witness' business.
The plaintiff's submission does not rely on these "outsider" cases referred to above. The affidavit submitted by Ms. Wolff raises a different issue. She does not claim that it was plaintiff's records that were incorporated into her employer Dovenmuehle Mortgage, Inc's ("Dovenmuehle") records she reviewed, but states that as a "Vice President" of plaintiff, she reviewed plaintiff's records and those of its "agents," who are not identified. She attempts to establish plaintiff's records through the Business Records Rule ( CPLR 4518 [a] ), but make no statement regarding her familiarity with plaintiff's business records practices and procedures, merely providing the usual requirements as if she was an employee/officer of plaintiff. In light of the submissions on this motion, the previous history of this case, her deposition testimony and to a lesser extent, the history of the foreclosure industry, this attempt raises issues and questions of fact as to her ability to do so that cannot be determined on this motion. Her testimony at her deposition (Plaintiff's Exhibit "R" and Defendants' Exhibit "H") as well as the "Corporate Resolution - Signing Officers," (Plaintiff's Exhibit "A") and her prior affidavit (Defendants' Exhibit "I") raise questions of fact as to the authenticity of her representations in her present affidavit.
At her deposition she testified that she is a "corporate signer" for plaintiff as she is a senior employee of Dovenmuehle. When asked if she ever reviewed records made by plaintiff she hesitated to answer, and then answered that the records were "our records because we report to them." She testified that she had at other times disclosed to a court that she was employed by Dovenmuehle, but then refused to answer the question "Did you disclose that to the court in this action." She testified that Dovenmuehle is plaintiff's servicer, that she is employed by Dovenmuehle, that she has signing authority as a "Vice President" of plaintiff, that she works in an office maintained by her employer, not plaintiff, she became a "Vice President" of plaintiff because she was "a corporate signer and a senior employee of my company, Dovenmuehle." (Plaintiff's Exhibit "R" and Defendants' Exhibit "H," deposition pages 1-9).
She testified that she did not prepare the original affidavit herself, that she generally receives the affidavit from the attorney's office, that attached thereto are the documents that she uses to support the affidavit, which she does review. But when asked if she made sure that those documents matched the ones in Dovenmuehle's system, she said she just validates dates, figures and the people who signed it. She said the affidavit should not identify Dovenmuehle as her employer and that in reviewing the documents submitted with the affidavit, she reviewed the documents that were part of Dovenmuehle's records, not plaintiff's records (Plaintiff's Exhibit "R" and Defendants' Exhibit "H," deposition pages 12-15). When later questioned about her review for her affidavit submitted in support of plaintiff's first motion, she stated that she did not compare the loan documents attached to the affidavit she signed with copies maintained in her employer's records other than to compare the signatures and the amounts (Plaintiff's Exhibit "R" and Defendants' Exhibit "H," deposition pages 40-42). When questioned about the different marks on the copy of the consolidated note submitted with the affidavit and that which was contained with the Clerk filing of the CEMA and Consolidated Mortgage she could offer no explanation, and acknowledged that there were differences (Plaintiff's Exhibit "R" and Defendants' Exhibit "H," deposition pages 31-42; 57-58).
The court must consider the above deposition testimony, as well as prior submissions, when reading the claims made in the Wolff/Bressner affidavit submitted in support of plaintiff's present motion, including the claim in her present affidavit of familiarity with plaintiff's business records and of reviewing plaintiff's records in plaintiff's attempt to make those records admissible pursuant to CPLR 4518 (a).
In considering the issue of the admissibility of Ms. Wolff/Bressner's affidavit and the records it refers to pursuant to CPLR 4518 (a), the court must also consider the terms of the corporate resolution appointing her a "Vice President" of plaintiff. The full submissions make it appear that there is a question of fact as to whether this document makes her an officer or employee of plaintiff, or merely an authorized "signer" for plaintiff employed by Dovenmuehle.
The corporate resolution (Plaintiff's Exhibit "A") lists many employees of Dovenmuehle, which it refers to as a "subservicer," including Wolff/ Bressner, who were appointed "Vice President," "for the sole, limited and exclusive purposes, acting on behalf of Lender (plaintiff) of signing, executing and (where required by law or custom) attesting, acknowledging and/or recording" documents on behalf of plaintiff. Among the "8" designated types of "signing" that are authorized by these "Vice Presidents" are pleadings notices and deeds or other instruments to institute, continue or complete foreclosures of loan handled by the subservicer, "but only if the foreclosure has been approved by an official of Lender (plaintiff) in each instance." (Plaintiff's Exhibit "A," p1, subparagraph 5). Not only is there no proof offered as required by subparagraph 5 of the resolution that Lender (plaintiff) authorized this foreclosure giving Ms. Wolf/ Bressner authority to act on its behalf as a signer, but this language has a more significant application to the issue of whether she was a "real Vice President," an officer/official of plaintiff.
The fact that she had to wait for approval of an official of plaintiff before she could act raises a question as to whether she was truly a "Vice President" and officer of plaintiff, and not more than an employee of Dovenmuehle who acted as a "signer" for plaintiff. The parties submissions further raise a question as to her bona fides to be able to testify to plaintiff's records pursuant to the Business Records Rule ( CPLR 4518 [a] ), as it could be said that the conditions of her "employment" as a "Vice President" of plaintiff gave her no real position with plaintiff and no familiarity with plaintiff's business practices and procedures. The second full paragraph on page three of the corporate resolution makes her acts on behalf of plaintiff "consistent" with her duties for her actual employer. Paragraph three terminates her relationship with plaintiff if her employer's subservicer role ends, as well as if she is terminated by her employer or quits her job with her employer. The fourth paragraph spells out that she is not an employee of plaintiff for any purpose and is not entitled to "any benefits granted by plaintiff, law or regulation to other officers, directors or employees." It can be argued that she is an employee of Dovenmuehle who plays no role in plaintiff's business operations, other than to act as an "official signer."
In an industry that only a decade ago was branded with the reputation of at best sloppy practice by lenders, servicers and their counsel, and at worst "robo-signing," this court expected better on this re-submission of plaintiff's summary judgment motion. Based upon the history of this action, where on the prior motion significant questions had been raised concerning the authenticity of loan documents, as well the accuracy of affidavits, where further discovery and depositions raised additional questions known to counsel, the court would have hoped that this submission would have resolved those issues, and not raised additional issues, as it has, which must be determined by a trier of fact.
The court believes that it is possible for these issues to be resolved by plaintiff through testimony at the limited issue trial this order sets, but upon the record presently before it, the court finds that there are a number of significant issues of fact that cannot be resolved on plaintiff's motion for summary judgment. Where there are unresolved inconsistencies between prior and present submissions on behalf of plaintiff, such inconsistences present questions of fact precluding summary judgment (see Cenlar, FSB v. Censor , 139 AD3d 781, 783 [2d Dept 2016] ; Wells Fargo Bank, N.A. v. Bedell , ––– AD3d ––––, 2020 NY Slip Op 04891 [2d Dept 2020] ; Bank of NY Mellon v. Itzkowitz, ––– AD3d ––––, 2020 NY Slip Op 04909 [2d Dept 2020] ). As noted in cases previously cited, a court is not to make a determination as to credibility on a motion for summary judgment except in rare circumstances; this case does not present one of those circumstances.
The trial pursuant to CPLR § 2218 is set for 2:00 PM on October 8, 2020 before this part by "Skype." In consideration the ongoing Covid-19 Crisis, and the fact that plaintiff's witnesses will be coming from outside of the New York metropolitan area, the court believes that this is the best manner in which to hold this limited issue trial. To facilitate this, the court will provide counsel for the parties with the information necessary for them to participate in a "Skype" virtual trial by notice filed through the court's e-filing system. All exhibits and testimony will be presented at the "Skype" trial, and parties are directed to submit copies of all exhibits intended to be relied upon at the trial to the court, and all other counsel, at least 72 hours prior the trial.
This constitutes the decision and order of the court.