| Argent Mtge. Co., LLC v Mentesana |
| 2010 NY Slip Op 09874 [79 AD3d 1079] |
| December 28, 2010 |
| Appellate Division, Second Department |
| Argent Mortgage Company, LLC, Appellant, v LeonardMentesana et al., Respondents. |
—[*1]
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Jacobson, J.), dated May 18, 2009, which denied its motion for summaryjudgment on the complaint.
Ordered that the order is reversed, on the law, without costs or disbursements, the plaintiff'smotion for summary judgment on the complaint is granted, and the matter is remitted to theSupreme Court, Kings County, for the appointment of a referee to compute the amount owed tothe plaintiff.
In August 2004 the plaintiff commenced this action to foreclose a mortgage. Although themortgagor failed to appear, the Supreme Court denied the plaintiff's motion for an order ofreference, and required it to submit, inter alia, the mortgagor's initial mortgage application. Afterreviewing documents submitted by the plaintiff, the court set the matter down for a hearing, dueto concerns over the plaintiff's decision to lend funds to the mortgagor. On July 6, 2006, the courtappointed a special referee. The special referee located the mortgagor, who told the referee thathe had signed the note and mortgage as a favor to the former owner of the subject property, andthat he was not supposed to make payments on the mortgage. In December 2006, a guardian adlitem was appointed to represent the mortgagor based upon the report of a special refereeindicating that there was a possibility that the mortgagor was "incapable of adequately defendingor prosecuting his rights." The guardian ad litem submitted an answer on behalf of the mortgagor,and submitted a report to the court dated October 23, 2007. The guardian ad litem indicated inthe report that she had spoken with the mortgagor, and opined that the mortgagor willingly andknowingly purchased the subject property and obtained a mortgage, and that the mortgagorunderstood the associated risks involved in the transactions. The plaintiff subsequently made anunopposed motion for summary judgment on the complaint. The Supreme Court denied themotion, holding that the plaintiff was requesting that the court enforce the terms of a fraudulentmortgage, and that the plaintiff had neglected its responsibility to ascertain the credit status of themortgagor. We reverse.
"[I]n an action to foreclose a mortgage, a plaintiff establishes its case as a matter of lawthrough the production of the mortgage, the unpaid note, and evidence of default" (RepublicNatl. Bank of N.Y. v O'Kane, 308 AD2d 482, 482 [2003]; see also U.S. Bank Natl. Assn. TR U/S6/01/98 [Home Equity Loan Trust 1998-2] v Alvarez, 49 AD3d 711 [2008]; Daniel Perla Assoc., LP v 101 Kent Assoc.,Inc., 40 AD3d 677 [2007]; U.S.Bank Trust N.A. Trustee v Butti, 16 AD3d 408 [2005]). Here, the plaintiff produced thenote and mortgage executed by the mortgagor, as well as evidence of nonpayment. Accordingly,it was incumbent upon the defendants to produce evidentiary proof in admissible form sufficientto demonstrate the existence of a triable issue of fact as to a bona fide defense to the action(see State Bank of Albany v Fioravanti, 51 NY2d 638, 647 [1980]; Republic Natl.Bank of N.Y. v O'Kane, 308 AD2d 482 [2003]; FGH Realty Credit Corp. v VRD RealtyCorp., 231 AD2d 489, 490 [1996]). In this case, the plaintiff's motion was unopposed, andthere is no support in the record for the court's conclusion that the mortgage sought to beforeclosed was obtained by fraudulent means. Further, evidence that the plaintiff's decision tolend money to the mortgagor was unwise was insufficient by itself to raise a triable issue of factas to whether the plaintiff engaged in fraudulent or unconscionable conduct (see Ricca v Ricca, 57 AD3d 868,869 [2008]; Quest Commercial, LLC vRovner, 35 AD3d 576, 577 [2006]; FGH Contr. Co. v Weiss, 185 AD2d 969,971 [1992]). Accordingly, the Supreme Court should have granted the plaintiff's motion forsummary judgment on the complaint. Skelos, J.P., Dickerson, Belen and Lott, JJ., concur.[Prior Case History: 23 Misc 3d 1116(A), 2009 NY Slip Op 50786(U).]