| Endeavor Funding Corp. v Allen |
| 2013 NY Slip Op 00426 [102 AD3d 593] |
| January 29, 2013 |
| Appellate Division, First Department |
| Endeavor Funding Corp., Respondent, v OllieAllen et al., Appellants, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Fidelity National Law Group, New York (Edward C. Kesselman of counsel), forrespondent.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered April 15,2010, which, to the extent appealed from as limited by the briefs, granted plaintiff'smotion for summary judgment on its foreclosure complaint and dismissed defendantOllie Allen's defenses and counterclaims, and referred the matter to a special referee forcomputation of damages, unanimously affirmed, without costs.
By submitting proof of the existence of a mortgage and of default, plaintiffestablished a prima facie case for foreclosure. In opposition, defendant failed to raise atriable issue of fact as to plaintiff's involvement in a fraud in connection with therefinancing transaction (seeDeutsche Bank Natl. Trust Co. v Gordon, 84 AD3d 443 [1st Dept 2011]).
The formation of Ollie Allen Holding Company, LLC was not defective, and thecompany therefore was capable of taking title to real property (see Matter of Hausman, 13NY3d 408 [2009]). Nor did defendant lack the authority to transfer title of themortgaged property to the company.
The protections against predatory lending found in the Home Equity TheftPrevention Act (Real Property Law § 265-a) and Banking Law § 6-lare not applicable here. The $475,000 mortgage was executed in 2006, before theFebruary 2007 effective date of [*2]the Home EquityTheft Prevention Act, and the amount of the loan exceeded the then applicable $300,000monetary limit of Banking Law § 6-l. Concur—Andrias, J.P.,Sweeny, DeGrasse, Freedman and Richter, JJ. [Prior Case History: 2010 NY Slip Op30861(U).]