| Nationstar Mtge., LLC v Alling |
| 2016 NY Slip Op 05537 [141 AD3d 916] |
| July 14, 2016 |
| Appellate Division, Third Department |
[*1]
| Nationstar Mortgage, LLC, Respondent, v Marc M.Alling, Also Known as Marc Alling, Appellant, et al.,Defendants. |
David Brickman PC, Albany (David Brickman of counsel), for appellant.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore (Fernando C.Rivera-Maissonet of counsel) and Sandelands Eyet LLP, New York City (William C.Sandelands of counsel), for respondent.
Egan Jr., J. Appeal from an order of the Supreme Court (O'Connor, J.), entered July1, 2015 in Albany County, which, among other things, granted a motion by plaintiff'spredecessor in interest for summary judgment.
In July 2007, defendant Marc M. Alling (hereinafter defendant) executed a note infavor of Countrywide Home Loans, Inc. in the amount of $64,000. The note was securedby a mortgage in favor of Mortgage Electronic Registration Systems, Inc., asCountrywide's nominee, and encumbered property located in the City of Schenectady,Schenectady County. Defendant defaulted on the note in April 2011 and, in September2011, the underlying mortgage was assigned to Bank of America, N.A., successor bymerger to BAC Home Loans Servicing, LP—formerly known as CountrywideHome Loans Servicing, LP. Bank of America sent defendant a demand letter and adviseddefendant of its intent to accelerate the loan in August 2012.
In March 2013, Bank of America commenced this foreclosure action against, amongothers, defendant. On or about May 1, 2013, Bank of America and defendant entered intoa [*2]stipulation permitting defendant to file an answeron or before May 30, 2013.[FN1] Shortly thereafter, on or about May 14,2013, Bank of America assigned the mortgage, "together with the note[ ] and obligationstherein described," to Nationstar Mortgage, LLC. In February 2015, Bank of Americamoved for, among other things, summary judgment and to substitute Nationstar as thenamed plaintiff in this action. Defendant opposed this motion and cross-moved to amendhis answer. Supreme Court, among other things, granted the motion for summaryjudgment, appointed a referee to compute the total sum due and owing, substitutedNationstar for Bank of America as the named plaintiff and amended the captionaccordingly. Defendant now appeals.
We affirm. Defendant initially contends that Bank of America lacked standing tobring this foreclosure action because, at the time such action was commenced, Bank ofAmerica was not "the holder or assignee of the mortgage and the holder or assignee ofthe underlying note" (BACHome Loans Servicing, LP v Bixby, 135 AD3d 1009, 1010 [2016] [internalquotation marks and citation omitted], lv dismissed 27 NY3d 1014 [2016]). Thisargument is premised upon defendant's erroneous belief that Bank of America assignedthe note and mortgage to Nationstar prior to commencing the foreclosure action.As this action was commenced in March 2013 and the assignment from Bank of Americato Nationstar occurred in May 2013, defendant is simply incorrect. More to the point, anystanding challenge was waived by defendant's failure to raise this as an affirmativedefense in the only answer with which this Court has been provided or in a pre-answermotion to dismiss (see CPLR 3018 [b]; 3211 [a] [3]; [e]; CNB Realty v Stone Cast, Inc.,127 AD3d 1438, 1439 [2015]; EMC Mtge. Corp. v Gass, 114 AD3d 1074, 1075 [2014];HSBC Bank USA N.A. vPacyna, 112 AD3d 1246, 1247 [2013]).
As to the merits, "[t]o establish entitlement to summary judgment in a foreclosureaction, a plaintiff must produce evidence of the mortgage and unpaid note along withproof of the mortgagor's default" (Wells Fargo Bank, NA v Ostiguy, 127 AD3d 1375, 1376[2015]; see U.S. Bank N.A. vCarnivale, 138 AD3d 1220, 1220 [2016]; Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737,738 [2015]; Schantz v O'Sullivan, 288 AD2d 536, 536-537 [2001]). Here, insupport of its motion for summary judgment, Bank of America tendered, among otherthings, copies of the note, mortgage and relevant assignment agreements, as well as acopy of its August 2012 demand letter attesting to defendant's default and notifyingdefendant of its intent to accelerate the loan. Additionally, Bank of America provided anaffidavit from Nationstar's assistant secretary, who, upon reviewing all of the pertinentrecords (including those maintained by Bank of America) and attesting to the assignmentof the subject note and mortgage, averred that defendant was in default commencing withthe April 1, 2011 mortgage payment and all subsequent payments thereafter due. Suchproof was sufficient to demonstrate Bank of America's prima facie entitlement tojudgment as a matter of law, thereby shifting the burden to defendant to raise a questionof fact as to a bona fide defense to foreclosure (see U.S. Bank N.A. v Godwin, 137 AD3d 1260, 1262[2016]; PHH Mtge. Corp. vDavis, 111 AD3d 1110, 1111 [2013], lv dismissed 23 NY3d 940[2014]). In opposition, defendant argued only that Bank of [*3]America failed to properly credit certain of his mortgagepayments made in 2009 and 2010. However, any omission by Bank of America in thisregard does not excuse—and, more to the point, defendant does notdispute—the fact that he subsequently defaulted on his obligations in 2011, andthe record makes clear that it is the 2011 default that forms the basis for this foreclosureaction. Indeed, in a May 2013 letter addressed to Nationstar, defendant readily admittedthat he "stopped making payments" on the subject loan in September2011—resulting in a delinquency of, by defendant's count, "20payments."[FN2]Inasmuch as defendant failed to tender sufficient proof to raise a question of fact relativeto his admitted default, Supreme Court, among other things, properly granted Bank ofAmerica's motion for summary judgment, substituted Nationstar for Bank of America asthe named plaintiff and amended the caption accordingly.[FN3]
Peters, P.J., McCarthy, Lynch and Devine, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1:Although the recordreferences an answer filed on defendant's behalf through counsel in August 2013, thispleading does not appear in the record on appeal and, upon inquiry from this Court,defendant provided only what appears to be a pro se answer—in letterform—dated April 1, 2013. Defendant also attempted to file an answer datedMarch 4, 2015, which was rejected by Bank of America as untimely. As a result, it doesnot appear as though any answer—other than the April 2013 pro sesubmission—was ever filed in this matter.
Footnote 2:The seemingdiscrepancy as to the date upon which defendant's default occurred stems from the factthat the last payment made by defendant—bearing a transaction date of August 31,2011—was applied as a credit to his March 2011 mortgage payment. Hence, toBank of America's analysis, defendant was in default beginning with the April 1, 2011mortgage payment, whereas—to defendant's thinking—he was current onhis mortgage until he admittedly stopped making payments in September 2011.Regardless of the date employed, however, there is no question that defendant was indefault when the demand letter was sent in August 2012 and when this action wascommenced in March 2013.
Footnote 3:To the extentthat—prior to his admitted default in September 2011—certain ofdefendant's payments may not have been properly credited by Bank of America and,hence, the amount actually owed by defendant is in doubt, this is a matter for the refereeto address in computing the sum currently due and owing.