Bank of N.Y. Mellon v. Fergus

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Bank of N.Y. Mellon v Fergus 2024 NY Slip Op 31121(U) March 27, 2024 Supreme Court, Kings County Docket Number: Index No. 507218/2015 Judge: Cenceria P. Edwards Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 04/03/2024 04:21 PM INDEX NO. 507218/2015 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/03/2024

At an IAS Term, Part FRP¹ of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 7th day of December 2022. PRE SENT: HON. CENCERIAP. EDWARDS, C.P.A., Justice. -. ---------- ·--·.·· ------.. ---------: -· - .-: ---------· ·---··-------· -- .· .. - .-X THE BANK OF J\fEWYORK MELLON F/K/ ATHE BANK OF NEW ORDER YORK AS TRUSTEE FOR THE BENEFIT OF THE Calendar#(s): 4 CERT!FICATEHOLDERS()FTJ-\E CWABS INC., ASSET-BACKED CERTffiCATES, SERI ES 2007 -SD 1, Index#: 507218/2015 Plaintift{s), Mot. Seq. #(s}: 4 -against-

RODNEY R. FERGUS, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF RUTH FERGUS; THE CREDIT BUREAU OF NEW YORK, TN<:'.; M ZOAREZ, INC.; CITY OF NEW YORK ENVIRONivlENTAL CONTROLBOARD,

Defe11dant(s). ---------- ·-- ·-· - ·-----· ----------. ·--- .· ... -------. --------- ·--- ·.. -· X

The following e-filed papers read herein: NYSCEF Doc. Nos.:

Notice of Motion; Affi davits ( Affirm a ti o 11s), and Exhibits ~._ __ 109-119 125 Opposing Affidavits {Affirmations) and Exhibits _ _ _ _ __ Reply Affidavits (Affin'nations) and Exhibits _ _ _ _ _ _ __

This is an action to foreclose a 111ortgage encumbering the residential reatpropeiiy at 820 Putriani. Averiue, Brooklyi1, NY 11221. Defendant Rodney R. Fergus, lndividually and as Exec11tor of the Estate of Ruth Fergus ("Defendant:"), moves for summary judgment dismissing the complaint on the grounds of lack of personal jurisdiction and: the statute of limitations. RELEVANT PROCEDURAL HISTORY

The complaint alleges that in February 2007 defendant's decedent R:tith Fergus, forme1' owner of the subject pn;mises; executed a11d delivered to Plaintiffs predecessor. a note, .secured by ,he subject mortgage, in the principal sum of$357~0QO.OO~ and she fatled to make the monthly

FILED: KINGS COUNTY CLERK 04/03/2024 04:21 PM INDEX NO. 507218/2015 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 04/03/2024

F APA applies e\'en to pte~2023 cases, so long as a judgment of foreclnsure and sale hasnot bee11 enforced (see U.S Bank N.A. v Outlaw, 217 AD3d 721, 722-723 [2d Dept 2023]; Sycp, LLC v Evans, 217 AD3d 707; 709 [2d Dept 2023]; AIIGLQ ln1·s., LP: v Singh; 216 AD3d 1087, I 088 [2d Dept 2023]): However; appellate courts have also started remitting cases for the trial courJs to consider argumcqts regarding FAPA's constitutionality (see e.g.. Sarkar v Deutsche Bank Tttt,i'l Cc): Al1L'i'., _AD3d_, 2024 NY Slip Op O12 LL*² [2d Dept 2024]; HSBC Bank U5\4 v

G[fford, _AD3d_, 2024 NY Slip Op 00678, *4-:5 [1st Dept 2024]). For the reasons discussed below, there is no need to request additional argument addressing FA.PA because Plaintiff's arguments are unavailing even under the pre-existing law; Plaintiff argues that "[t]he 2008 action cannot Serve as a valid acceleration of the Mortgage because Plaintiff cl.id not come into possession of the original Note ul1til Match J 9, 2015" (NYSCEF doc. #126; ~22). Jfo\ve\1et, Plaintiff also asserts, based on an affidavit by Mariah Royce, a document verification specialist employed by.loan servicer, NewRez.LLC f1/k/a New Penn Financial LLC d/b/a Shellpoint. Mortgage Servicing ("N etvRez''), that "the original Note was not received by Plaintiff until April 10, 2012" (.fr:e id. #126; ~24}. Plaintiffthen states, ''based upon her review of the records [Royce] can attest that the origim1l Note was not received by Plaintiff's custodian until atlcast April 10, 2012" (id., ~'.30 [emphasis aclded]). Notwithstanding these inconsistencies, Plaintiff's initial focus on possession of the note appears to be misplaced, as that is riotthe only way to acquire standing. To the contrary, "[i]n a foreclosure: action, a plaintiff has standing if it is the holder or assignee of the underlying note at the time the action is commenced, A plaintiff tnay demonsfrate that it is the holder or assignee of the underlying note bv showing either a ,vritten assignment or physical dclive1y of the note" (21st Mtge. Ccnp. v Ada1i1es, 153 ADJd 474, 476 [2d De_pt 2017] [interrial cit~tion,, omitted] [emphasis added]). · · ·

1n the 2008 action's verified complai1H, Plaiiltiff claimed that after the mortgage was recorded on April 5, 2007, "[t]he note and mortgage \Vere thereafter dulv assigned to plaintiff by an assigmnent of mortgage duly executed'·' and that ''the plaintiff is still the ovmer and holder· of the not~ and mortgage" (see NYSCEF doc. #116, ~,r3-4 [emphasis added]). Since fill. assignment of the noteis all thatis needed.to confer standing to foreclose, andthe2008 complaint asse1tedthat the note had beei1 duly assigned to Plaintiff, the present representation that Plaintiff or its custodian took possession of the note years later in 2012 or 2015 does Iicit, in and of itself, undermine Plaintiff's standing to accelerate the mortgage and comrt1ence an action in 2008.

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Plaintiff also attacks the -validity of the assignmerit upoi1 \Vhich its standing in the 2008 action was based, arguing that the purporte_d assignor, Mortgage Electronic Registration Systerns, Inc., acting as nominee for the original lender ("MERS)". lacked authority to assign the subject riote. According to_ Plaintiff, "the_ Second Departrnent has already ruled [that] unless a party demonstrates that ·the origi1ml note was delivered to MERS prior to the execution of the assignment, standing c;annotbe established" (NYSCEF doc. #126; ~,r 31~32,citing-Citibank, N,A. v Herilian, 125 AD3d 587 [2d Dept 2015]). However, in Herman it was the defendants who moved for .swnmary judgment and the Court found that they had ;'establishedi prima facie, that MERS \vas never the holder of the note and was without authority to assig11 the note to the plaintiff' (Herman, sup,·a; 125 AD3d at 589). Hence, the Herman Court's statement that the plaintiff failed to establish delivery of the note to MERS before execution of the assignnie11t was made in the context of that plaintiffs burden to submitevidence raising a triable issue of fact in response to the moving defendants' pril1iafdcie shmving tlmt MERS 1iever held the note. That is distinguishable from the instant case where Defendant expressly relies on Plaintiff's standingin the2"008 action. As standing \\'as never challen~ed \.-,;,ithin that action, Defendant met his prima .fcrcie burden as the proponent of summary judgment by simply submitting the 2008 complaint, wherein Plaintiff vouched for the validity-ofthervt:ERS assigmnent. It.is also noted that Plaintiff reiterated that factual assertion \vhen it obtained an order of reference in the 2008 action. To satisfy its O\Vll burdenPlaintiff need not affirmatively e::;tablish tlrnt it lacked standing to commei1ce the 2008 action, but only raise a trhtble issue offaeL As discussed_, Plaintiff relies on the affidavit of Royce, who based her assertions on a review of the records of het employer and Plaintiffs servicer, NewRez. "A proper foundation fo1· the adniission of a business record must be provided by s01i1eone with personal knowledge of the n1ak.er' s business practices and procedures" (Atitovest v Cassdmqjor, 195 AD3d 672, 673 [2d Dept 2021]). ''I,::vidence of the contents of business records is admissible only where the records themselves are introduced, Without their introduction, awitness,'s testimony as to the contents of the records is inadtnissible hearsay" (Fed. Natl. /vftge. Assn: v Brottmdli, 173 AD3d 1139, 1141 [2d Dept2019]). Defendant-argues,- inter- aliiJ, that the Royce affidavit,, which was executed on Noven1ber 26, 2021, is deficient because "it relies entirely on business records of a loan servicer that did not even exist in '.2008'' (see NYSCEF doc. #1 J3, ,14). Royce does not specifically identify the records or docu.111ents upon which she based her assertions regardi11g when Plaintiff's custodian

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came into possession of the original note. The exhibits annexed to her affidavit, totaling nearl y 70 pages, include a printout of what looks like a screenshot from a computer database indicating that the note was in custody in Dallas and listing the date of possession as April 10, 2012 (see YSCE doc. # 130, p. 44). The exhibits also include a copy of the limited power of attorney, executed on February 6, 2020, appointing ewRez as Plaintiff's servicer and attorney-in-fact for · the subject loan (see hf. , pp. 6-42). Tellingly, the affidavit is silent regarding the holder or location of the note before April 10, 2012, and fails to explain the source of the information. Since the records upon which Royce based her factual assertions show that ewRez sta11ed servicing the loan nearly eight years after the note purpo11edly came into Plaintiffs custodian ' s possession, and 12 years after the 2008 action was commenced, she offers no probative evidence as to whether MERS held the note as of the August 9, 2007 date of its assignment to Plaintiff, and thus, whether Plaintiff had standing to accelerate the m011gage and commence that action. The court thus finds that Plaintiff fai led to raise a triable issue of fact irrespective of which law governs the analysis. Accordingly, the above-referenced motion by Defendant, for, inter alia, summary judgment dismissing the complaint is GRANTED to the extent that it is hereby: ORDERED that this action and all claims asserted in the complaint are dismissed against defendant Rodney R. Fergus, Individ ually and as Executor of the Estate of Ruth Fergus; and it is further ORDERED that the notices of pendency filed in the Office of the Clerk of Kings County on June 11 , 2015, May 2 2018, and August 19, 2021 against the subject premises located in Kings County, known as 820 Putnam Avenue, Brooklyn, New York, 11221 and designated as Block 1652, Lot 15 on the Tax Map of Kings County be and hereby are cancelled and discharged ; and th County Clerk is directed, upon payment of the proper fees, if any, to enter upon the margin of the record of same a notice of cancellation referring to this ~er. ~ ,-.., ::z: The foregoing constitutes the Decision and Order of this Court. : r./2 ~ -,,g , I., - c rz: ENTER, -- l"Tl-i 0-< )> C") r rn :;;o ::x Hon. Cenccria P. Edwards, ,JSC, CPA

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Footnotes

[1] of 7 [* 1] payments commencing with the payment due April 1, 2007, The decedent was allegedly served with process in July 2015, but did not appear or ans\\/er the complaint 1 By order dated March 25, 2019, the Court (Noach Dear, :.r.) granted the motion of Defendant for leave to file. an answer as the representative of the estate of the decedent, \VhO was his mothei' (see NYSCEF doc. #70). On Octobet 23, 2019, Defendant opposed Plaintiffs motion for a Judgment of Foreclosure and Sale and e-filed an ans\ver, which Plaintiff rejected (see NYSCEF doc. #s 95 and 102). By order dated January28, 2020, the cornt granted the motion to the extent ofordering the caption ameml,ed to substitute Defendant, individually and as executor ofthe decedent's estate, for the decedent; it also fornially vacated the order ohcfcrence issued ii) September 2017 and cort1pelled Plai1'1tiff to accept Defendant's answer (see NYSCEF doc. # 108). DISCUSSION Initially; this Court rejects Plaintiff's contention that Defendanf s sale bf the subject premises in April 2018 extinguished the estate's interest in this action, theteby mooting this 111otion. Justice Dear twice rejected this argument, noting that since Plaintiff has not waived a deficiency judgni.eht aga-inst the estate, it remains a necess~lry pa.11:y notwithstanding that Defoi1dant, in his i'ole as executor, has apparently sold the premises (see NYSCEF doc, #s 70 and 95). Plaintiff has not shown that the cii'cumstances have changed. LEGAL STANDARD.ON SUMMARY JUDGl\.lENT Sumiii.ary judgment is a drastic remedy that will be granted only if the movan:t has deillonstrated, through subi11ission of evidence in admissible fo1m, the absence of any material issues of fact (see Vega v Restani Constr. Co,1J,, 18 NY3d 4991 503 [2012]), and has affirmatively established the ine.rit of his or her cause of action or defense (.~ee Zuckermah 11 }V'eiv York, 49 NY2d 557, 562 [1980]). A failure to make a prima jade showing of entitlement to judgment as a matter of law "requires ·a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [ I 986]), If a IUovant makes the prima facie showing, the burden then shifts to the non-movant tQ raise a material issue of fact requiring a trial (see id). Courts.must v1Eiw the evldence in the light most favorabie to.the non- movm1t (see Brctnham v Loe11 s O;piwum Cinemas, Inc., 8 NY3d 931; 932 [2007]), tu:id draw all 1 reasoriable inferences h1 his or her favor (see Haymon vPetrit, 9 NY3d 324, 327, rt* [2007]). The detedert t, Ruth· Ferg;us, died on September 2, 2O16, at the age. of 100 (See NYSCEF do.c. #40, p, 107),, 1

[2] of 7 [* 2] PERSONAL JURISDICTION Defendant argues that personal jurisdiction is lacking bec:ause when the decedent was served in 2015 2 , she was 99 years old and suffering from advai1ced dementia, such that she Was mentally inconipctent and, thus, inc11pable of understanding arid defending this action, making the service invalid. Defendant and the decedent's niece. Anita Nurse, submit personal affidavits attesting that the decedent could not have understood the significance of any legal papers due to her me11tal condition (see NYSCEF doc. #s I 12~113). However, since neither affiant professes medical expertise, this Court cannot simply accept their diagnoses of the decedertt1 s condition. Defendant also sub111its a purported page frm11 the decedent's medical records from a Septen1ber 2014 visit to New York Methodist Hospital (see NYSCEF doc. #108). However, as the document is not certified, it is not in admissible form, and, thus, cannot be considered in support of Defendant's motion (see Zuckermai'I, 49 NY2d at 562 [proponent of suiiimary .judgment bears "the strict requirement'' to·submit"evidentiary proofin admissible form"]). In any event, evenif the decedent was mentally incompetent when served 1 this does nc,t render the service a 11.ullity. "An incapacitated individual who has not been judicially declared incompete11t may sue or be sued in the same mmmer as any other person ... '' (Linghua Li v XiciO.

[175] AD3d 672, 67J-74 [2d Dept2019]). Hence. contrary to Defendant's contention, the re1nedy for the decedent's mental incapacity wbuld not be disirtissal of the complaint against her, but the appointment of a guardian ad !item pursuantto CPLR §§ 1201 and J202 (see id.; Piggott v Lifespire, Inc,, 149 J\D3d 785, 78(j [2d Dept 20 l 7J). As the decedent's i11terests in this action are i10w represented by Defendant, as the executor.of her estate, that remedy is mnot. STATUTE: OF LIMl'J'ATIONS Defe11dant also argues this actimi is time-ban'ed due to Plaintiffs prior action to foreclose on the subject mortgage. CPLR § 3212 {c) permits a pruiy fo mo 1,1e for summary judgment on, l!iter alia, any of the grounds for disn1issaLemmwrated in CPLR § 3211 (a}or (b), and ;'[o]n amotionto dismiss a cause of action pursuantto CPLR 3211 (a) (5) on the ground that it is ban'ed by the statute oflimitations, a defendant bears theinitial burden of establishing, prima facie, that the time in which to sue has expii·ed. Once this showing has beert made; the burderi. shifts to the plaintiff to aver evidentiary facts establishing that the action was timely or to raise [a question of fact] as to whether the action was timely" 2 Service was by delivel'y of the papers to Defendant. as a person of suitable age and discretion (see CPLR § 308[2]). 3 3 of 7 [* 3] (Balik·of NY A1e.lfoi1 v. -Craig, 169 AI)3:d 627_, 628 [2_d. Dept .2019]. [iriterpal quotation marks and citations omitted]). ''As.a_general mattei", an action to foreclose a ·mortgage 1il.ay be brought to recovet- tmfiaid ~u11i.s_: which were due within the six-year period immediately preceding the comm~ncemcnt of the action" (Wells·_Fargo ]Ja,ik, N.~f v B1_1rke, 94-A..D3d 980; 982 [2d Dept 20.12]~ c"it1t1.g CPLR 213" [4]). In addition, aieveti if a 11101igage is payable in installnients, mice a i11ortgage debt is accelerated, the entire. _amount is_ due:,-and the Statute of Limitatious begins tQ tun on the .e11tire debt''' (id, qi1otii1g E}v!C Aftge. Coq1, v Patella, 279 AD2d 6041 605 [2d Dept [2001]). ''Ari ac:celeratioi1· of a m:ottgage debt occurs.~ iitte;r .alia, when 1;1:_ crecj:itor commences an action to foreclose upon a nqte and mortgage and seeks, in the complaint; payment of the full balance due'' (Deutsche Bank Natl: l'rusr Ca. ·v Ebaiiks_, 189 AD3d l535-, 1536-153 7 [;2d Dept.20..20]). Defendant subiTiits a copy of the complaint filed on July 31, 20d~ under index number 22266/2008, c;ommencii:ig an actio11 against th~ deced·ent to for~close on the·. same mortgage, wherein Plaintiff alleged the same April 1, 2007 default date and declared the. e;11tire principal halanc.c due (see NYSCEF doc. #116; ,r,r 8-9) .. Th.is establishes,.pri11u r/i'1de, thaJ_; i) the-.s.~Lbje1::t mmtgage was accelerated on. July 31, 2008; 2) the statute of limitations .to coliect on the debt expired on July 31, 2,_0.-i 4; and 3-). the instant actio1t conimertced :on June 11,. 2015 was untimely. In the face of Defendant's prima facie showing; the but'.den shifts to Plaintiff ''to raise a friable issue of fact as to whetb¢r the :statute of Umita\io•1s is tolled or is otherwise· inappJicable" (Kitty Jie :Yiwn v2368 W. 12th St., LLC', 119 AbJd 674i 674 [2d Dept 2014]), Plai11tiff argues thaf ·it lacked standing to ac·celetate the mortgage and comnience- ·a :foreclosure in 2008. Defei1dant points out the inherent contradiction of Plaintiffs present argument, in that the 2008. action was commeticed 11ot by a ptedecessor-in-foterest,. but by .Plaintiff.it,self/ It is noied that under the Foreclosure Abuse Pt'evention Act ("FAPN'),. enactecl Decen1ber 30, 2022, the lmv now provides, inier q{ia_, that where, as-.in- theinstap.t action. a statute of lini.itatious defe11s·e "is based on atlaim thatthe [loan] instrnment at issue was accelerated prior .ta, or by \Vay of conimem;:ernen_t of a prior .actio.n, a plaintifi sha11);,e estopped frq,n EJ.sserting: that- the in$trument was not validly .accelerated, unless the prior action ·\vas dismissed- based 1.1pon an expressed judicial detetn1.ination, imi.de upon a timely interposed defense, that the in_s.trument was not validly ac~elerated" (CPLR § 213. [4] [a]),.. Hence, under the presently governing law, Plaintiftv;s argument lacks merit. The parties dO ncit ·discuss this, ho,vever; as the irtotioi1 was -.fully submitted shmtly before FAPA's- er1-actrnent_. 4 4 of 7 [* 4]