| Washington Mut. Bank v Valencia |
| 2012 NY Slip Op 01245 [92 AD3d 774] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Washington Mutual Bank, Formerly Known as Washington MutualBank, FA, Respondent, v Edith Valencia et al., Appellants, et al.,Defendants. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern of counsel), forrespondent.
In an action, inter alia, to foreclose a mortgage, the defendants Edith Valencia and RicaurteValencia appeal from an order of the Supreme Court, Queens County (Markey, J.), dated August12, 2010, which, among other things, upon the default of the defendant Edith Valencia inappearing or answering, granted the plaintiff's motion for summary judgment on the complaint.Justice Hall has been substituted for Justice Angiolillo (see 22 NYCRR 670.1 [c]).
Ordered that the appeal by the defendant Edith Valencia is dismissed, as no appeal lies froman order entered on the default of the appealing party (see CPLR 5511; Development Strategies Co., LLC, ProfitSharing Plan v Astoria Equities, Inc., 71 AD3d 628, 628 [2010]); and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendant RicaurteValencia; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the defendant RicaurteValencia.
" '[I]n moving for summary judgment in an action to foreclose a mortgage, a plaintiffestablishes its case as a matter of law through the production of the mortgage, the unpaid note,and evidence of default' " (Wells FargoBank, N.A. v Webster, 61 AD3d 856, 856 [2009], quoting Republic Natl. Bank ofN.Y. v O'Kane, 308 AD2d 482 [2003]; see Rossrock Fund II, L.P. v Osborne, 82 AD3d 737, 737 [2011];Aames Funding Corp. v Houston,44 AD3d 692, 693 [2007], cert denied 555 US 1048 [2008]; Village Bank v WildOaks Holding, 196 AD2d 812, 812 [1993]). Here, the plaintiff satisfied its prima facieburden on that branch of its motion which was for summary judgment on the complaint insofaras asserted against the defendant Ricaurte Valencia (hereinafter the defendant). Accordingly, itwas incumbent on the defendant to establish by admissible evidence the existence of a triableissue of fact as to a defense (see Grogg vSouth Rd. Assoc., L.P., 74 AD3d 1021, 1022 [2010]; see also Pennsylvania Higher Educ.Assistance Agency v Musheyev, 68 AD3d 736, 736 [2009]; Quest Commercial, LLC v Rovner, 35AD3d 576, 576 [2006]; Famolaro vCrest Offset, Inc., 24 AD3d 604, 605 [2005]; Bank of N.Y. v Vega Tech. USA, [*2]LLC, 18 AD3d 678, 679 [2005]).
The defendant raised the defense that he was authorized to rescind the underlying transaction,and in fact did so, pursuant to the Truth in Lending Act (hereinafter TILA) (see 15 USC§ 1601 et seq.). However, under the relevant provisions of the TILA, only an"obligor" is authorized to rescind a subject transaction (15 USC § 1635 [a]). Although thedefendant signed the mortgage, he did not sign the note at issue. Thus, the defendant was not anobligor within the meaning of 15 USC § 1635 (a), and therefore was not authorizedpursuant to the TILA to rescind the underlying transaction at issue (see Falkiner v OneWestBank, FSB, 780 F Supp 2d 460 [ED Va 2011]; Moazed v First Union Mtge. Corp.,319 F Supp 2d 268, 273 n 4 [D Conn 2004]; cf. Ferreira v Mortgage Elec. Registration Sys.,Inc., 2011 WL 1842864, 2011 US Dist LEXIS 52055 [D Mass 2011]). Furthermore, thedefendant did not tender any evidence tending to show that he or the defendant Edith Valencia,his wife, was using the subject property as a "principal dwelling," and therefore, that the right ofrescission set forth in 15 USC § 1635 (a) was applicable to the underlying transaction.Thus, the defendant failed to establish by admissible evidence the existence of a triable issue offact as to a defense based on the TILA right of rescission set forth in 15 USC § 1635 (a).
The defendant's remaining contention is improperly raised for the first time on appeal, and,accordingly, is not properly before this Court (see Wells Fargo Bank, N.A. v Cohen, 80 AD3d 753, 755 [2011]).Mastro, A.P.J., Belen, Hall and Lott, JJ., concur.