| Washington Mut. Bank v Nussen |
| 2016 NY Slip Op 02804 [138 AD3d 828] |
| April 13, 2016 |
| Appellate Division, Second Department |
[*1]
| Washington Mutual Bank, Formerly Known asWashington Mutual Bank, FA, Appellant, v Libby Nussen et al., Respondents, etal., Defendants. |
Stiene & Associates, P.C., Huntington, NY (Charles W. Marino of counsel), forappellant.
Ted T. Mozes, PLLC, Spring Valley, NY, for respondents.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Rockland County (Loehr, J.), dated October10, 2013, as denied that branch of its motion which was for summary judgment on thecomplaint insofar as asserted against the defendants Libby Nussen and Isaac Nussen and,in effect, denied those branches of its motion which were to strike the answer of thosedefendants, for an order of reference, and to substitute JPMorgan Chase Bank, NationalAssociation, as the plaintiff in this action and amend the caption accordingly nunc protunc.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts,and in the exercise of discretion, with costs, and those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against thedefendants Libby Nussen and Isaac Nussen, to strike the answer of those defendants, foran order of reference, and to substitute JPMorgan Chase Bank, National Association, asthe plaintiff in this action and amend the caption accordingly nunc pro tunc are granted,and the matter is remitted to the Supreme Court, Rockland County, for furtherproceedings, including the amendment of the caption in accordance herewith.
In 2003, the defendants Libby Nussen and Isaac Nussen (hereinafter together therespondents) obtained a residential mortgage loan from the plaintiff, Washington MutualBank, formerly known as Washington Mutual Bank, FA, in the principal sum of$1,162,500. In 2007, the respondents defaulted on the loan. The plaintiff sent therespondents notice of their default, but the respondents did not cure the default. In July2007, the plaintiff commenced this foreclosure action.
Based upon the understanding that all of the defendants had defaulted, the plaintiffsuccessfully moved for an order of reference. In January 2008, a judgment of foreclosureand sale was entered. However, about one month later, the respondents advised theplaintiff that they had in fact filed a late answer. On March 13, 2008, the plaintiff agreedto "voluntarily vacate" the prior order of reference and judgment of foreclosure and saleand accept the respondents' late answer.
[*2] On or about September 25, 2008, after the plaintiff entered receivership by theFederal Deposit Insurance Corporation, JPMorgan Chase Bank, National Association(hereinafter Chase Bank), acquired all of the plaintiff's loans and loan commitments (see JP Morgan Chase Bank, N.A. vSchott, 130 AD3d 875 [2015]).
In June 2009, the plaintiff moved to vacate the prior order of reference and judgmentof foreclosure and sale, for summary judgment on the complaint, and for a new order ofreference. On September 10, 2009, the Supreme Court reserved decision on the motionpending a conference to address the respondents' contention that the parties agreed to aloan modification. Settlement conferences were held in October 2009, April 2010, andMay 2010. On October 8, 2010, the plaintiff withdrew the motion.
On or about May 21, 2013, when the plaintiff was represented by different counsel, itfiled the subject motion seeking, among other things, (a) to vacate the prior order ofreference and judgment of foreclosure and sale; (b) summary judgment on the complaintinsofar as asserted against the respondents, to strike their answer, and for an order ofreference; and (c) to substitute JPMorgan Chase Bank, National Association (hereinafterChase Bank), as the plaintiff and amend the caption accordingly nunc pro tunc. Insupport of its motion, the plaintiff submitted, among other things, an "affidavit of merit"executed by a vice president at Chase Bank, the note, the mortgage, and the notice ofdefault. The respondents opposed the motion, arguing that there was a triable issue offact as to whether the parties had reached a loan modification agreement.
The Supreme Court granted that branch of the motion which was to vacate the priororder of reference and judgment of foreclosure and sale, denied that branch of the motionwhich was for summary judgment on the complaint insofar as asserted against therespondents, and, in effect, denied those branches of the plaintiff's motion which were tostrike the respondents' answer, for an order of reference, and to substitute Chase Bank asthe plaintiff and amend the caption accordingly. The plaintiff appeals, and wereverse.
The plaintiff established its prima facie entitlement to judgment as a matter of law byproducing the mortgage, the note, and evidence of default (see HSBC Bank USA, N.A. vSpitzer, 131 AD3d 1206, 1206-1207 [2015]; Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895,895 [2013]). Contrary to the Supreme Court's determination, we conclude that therespondents failed to raise a triable issue of fact as to whether the parties entered into aloan modification agreement. The respondents did not submit a signed writing reflectingany such agreement or evidence of any regular payments since 2007. Moreover, in anaffidavit, Libby Nussen admitted that, although there had been discussions about apossible loan modification, the parties never reached an agreement.
Although the respondents submitted a bank check in the amount of $25,000 whichallegedly reflected a one-time payment to the plaintiff in 2007, this payment, by itself,does not constitute evidence of a loan modification agreement (see generally Wells Fargo Bank,N.A. v Meyers, 108 AD3d 9 [2013]). Additionally, the respondents submittedevidence that, in 2008, they placed $35,000 in a short-term certificate of deposit at theplaintiff's request. However, they did not show that those funds were ever transferred tothe plaintiff.
Accordingly, the Supreme Court should have granted that branch of the plaintiff'smotion which was for summary judgment on the complaint insofar as asserted against therespondents, to strike the respondents' answer, and for an order of reference.
Further, with regard to that branch of the motion which was to substitute Chase Bankas the plaintiff, there is no dispute that the plaintiff has ceased operations and, at the timethe instant motion was decided, Chase Bank was the holder of the note and mortgage.The court recognized this insofar as it described the moving party as Chase Bank, "asassignee of Plaintiff." Under these circumstances, the court, in the exercise of itsdiscretion, should have granted that branch of the plaintiff's motion which was tosubstitute Chase Bank as the plaintiff and amend the caption accordingly (seeCPLR 1018, 3025 [b]; Mortgage Elec. Registration Sys., Inc. v Holmes, 131 AD3d680, 681 [2015]; T. J. Bettes Co. v South Falls Corp., 28 AD2d 198,200-201 [1967]). Leventhal, J.P., Miller, Maltese and Duffy, JJ., concur.