| Bank of N.Y. Trust Co., N.A. v Chiejina |
| 2016 NY Slip Op 05784 [142 AD3d 570] |
| August 17, 2016 |
| Appellate Division, Second Department |
[*1](August 17, 2016)
| Bank of New York Trust Company, N.A., as Trustee,4828 Loop Central Drive, Houston, TX 77081, Respondent, v Chudi Chiejina,Appellant, et al., Defendants. |
Joseph N. Obiora, Jamaica, NY, for appellant.
Houser & Allison, New York, NY (Jacqueline Muratore of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Chudi Chiejina appeals, aslimited by his brief, from so much of an order of the Supreme Court, Queens County(Livote, J.), entered January 8, 2015, as, in effect, granted that branch of the plaintiff'smotion which was for summary judgment on the complaint and for an order of reference,denied his cross motion to restore the action to the mortgage foreclosure settlementconference part calendar, and, sua sponte, in effect, directed the entry of a judgment offoreclosure and sale.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder, as, sua sponte, in effect, directed the entry of a judgment of foreclosure and sale isdeemed an application for leave to appeal from that portion of the order, and leave toappeal from that portion of the order is granted (see CPLR 5701 [c]); and it isfurther,
Ordered that the order is modified, on the law, by deleting the provision thereof, ineffect, directing the entry of a judgment of foreclosure and sale; as so modified, the orderis affirmed insofar as appealed from, with costs to the plaintiff.
The defendant Chudi Chiejina (hereinafter the homeowner) executed a note in whichhe agreed to repay the principal sum of $458,865. The note was secured by a mortgageon certain real property located in Queens. The plaintiff (hereinafter the Bank)subsequently commenced this foreclosure action after the homeowner allegedly defaultedunder the terms of the mortgage and note. After the homeowner interposed an answer,the parties appeared at various settlement conferences, during which they attempted tonegotiate a loan modification. The parties failed to agree to a loan modification, and theaction was released from the mortgage foreclosure settlement conference part after thehomeowner failed to appear at a scheduled conference.
The Bank subsequently moved for, inter alia, summary judgment on the complaintand for an order of reference. The homeowner opposed the Bank's motion andcross-moved to restore the action to the mortgage foreclosure settlement conference partcalendar. In the order appealed from, the Supreme Court, among other things, in effect,granted that branch of the Bank's motion which was for summary judgment on thecomplaint and for an order of reference, denied the homeowner's cross motion to restorethe action to the mortgage foreclosure settlement conference [*2]part calendar, and, sua sponte, in effect, directed the entryof a judgment of foreclosure and sale.
On appeal, the homeowner contends that the Supreme Court should have granted hiscross motion to restore the action to the mortgage foreclosure settlement conference partcalendar. The homeowner's contention that he did not default in appearing at thescheduled settlement conference is improperly raised for the first time on appeal (see generally Flagstar Bank, FSB vTitus, 120 AD3d 469, 470 [2014]). Furthermore, the record does not support thehomeowner's contention that the Bank failed to negotiate in good faith during thesettlement conferences (seegenerally US Bank N.A. v Sarmiento, 121 AD3d 187, 203 [2014]).Accordingly, the court providently exercised its discretion in denying the homeowner'scross motion to restore the action to the settlement conference part (see Aurora Loan Servs., LLC vChirinkin, 135 AD3d 676, 676 [2016]; Flagstar Bank, FSB v Titus, 120AD3d at 470).
The homeowner further contends that the Supreme Court erred in granting thatbranch of the Bank's motion which was for summary judgment on the complaint and foran order of reference. Generally, in moving for summary judgment in an action toforeclose a mortgage, a plaintiff establishes its prima facie case through the production ofthe mortgage, the unpaid note, and evidence of default (see U.S. Bank N.A. v Godwin,137 AD3d 1260, 1261 [2016]). Where the defendants in a mortgage foreclosureaction waive the issue of standing by failing to assert the defense in an answer orpre-answer motion to dismiss the complaint, the plaintiff need not establish its standingin order to demonstrate its prima facie entitlement to judgment as a matter of law (see Deutsche Bank Natl. Trust Co.v Islar, 122 AD3d 566, 567 [2014]).
Here, in support of its motion, the Bank produced the mortgage, the unpaid note, andevidence of the homeowner's default. Accordingly, the Bank established its prima facieentitlement to judgment as a matter of law (see Wachovia Mtge. Corp. v Lopa, 129 AD3d 830, 831[2015]; NationStar Mtge., LLCv Silveri, 126 AD3d 864, 865 [2015]).
In opposition, the homeowner failed to raise a triable issue of fact. Since thehomeowner did not raise the affirmative defense of standing in his answer (seeCPLR 3018 [b]), or in a pre-answer motion to dismiss the complaint (seeCPLR 3211 [a]), he waived that issue (see CPLR 3211 [e]; Matter of Fossellav Dinkins, 66 NY2d 162, 167 [1985]; One W. Bank, FSB v Vanderhorst, 131 AD3d 1028, 1028[2015]; Robinson v PlaroEstates, Inc., 119 AD3d 542, 544 [2014]). Furthermore, to the extent that thehomeowner contends that the Bank's failure to possess an enforceable note and mortgagedeprived the Supreme Court of subject matter jurisdiction, his contention is without merit(see Wells Fargo Bank, N.A. vGioia, 114 AD3d 766, 767 [2014]; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817[2013]; Wells Fargo BankMinn., N.A. v Mastropaolo, 42 AD3d 239, 242 [2007]). Accordingly, the courtproperly, in effect, granted that branch of the Bank's motion which was for summaryjudgment on the complaint and for an order of reference.
However, as the Bank correctly concedes on appeal, the Supreme Court erred to theextent that it granted relief that was not sought by the parties when it, in effect, directedthe entry of a judgment of foreclosure and sale (see generally Bowman v Bowman, 130 AD3d 661, 664[2015]). Accordingly, we modify the order appealed from by deleting the provisionthereof which, in effect, directed the entry of a judgment of foreclosure and sale. Balkin,J.P., Miller, Hinds-Radix and Brathwaite Nelson, JJ., concur.