HSBC Bank USA, N.A. v. Wu

2024 NY Slip Op 30543(U)
CourtNew York Supreme Court, New York County
DecidedFebruary 16, 2024
StatusUnpublished

This text of 2024 NY Slip Op 30543(U) (HSBC Bank USA, N.A. v. Wu) is published on Counsel Stack Legal Research, covering New York Supreme Court, New York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
HSBC Bank USA, N.A. v. Wu, 2024 NY Slip Op 30543(U) (N.Y. Super. Ct. 2024).

Opinion

HSBC Bank USA, N.A. v Wu 2024 NY Slip Op 30543(U) February 16, 2024 Supreme Court, New York County Docket Number: Index No. 850209/2016 Judge: Francis A. Kahn III 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: NEW YORK COUNTY CLERK 02/20/2024 04: 59 PM] INDEX NO. 85 0 2 0 9 / 2 0 16 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 02/20/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. FRANCIS A. KAHN, Ill PART 32 Justice ------X INDEX NO. 850209/2016 HSBC BANK USA, N.A., MOTION DATE Plaintiff, MOTION SEQ. NO. ------=--00-=-6=----- - V -

LEWIS WU, BOARD OF MANAGERS OF THE ROYAL ELIZABETH CONDOMINIUM, HOSKIE CO. INC.,SST INT'L INC.,UNITED INTERNATIONAL BANK, ARMAND LASKY, MARINA DISTRICT DEVELOPMENT CO LLC TIA DECISION + ORDER ON BORGATA, MIDLAND 59 LLC,UNITED STATES OF MOTION AMERICA 0/8/0 INTERNAL REVENUE SERVICE, JOHN DOE,

Defendant. ---------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 006) 149, 150, 151, 152, 153,154,155,156,157,158,159,160,161, 162, 163, 164, 165, 166,167,168, 169, 170, 171, 172, 173, 174,176,178,179,180,181, 182, 183, 184 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, the motion is determined as follows:

In this action, Plaintiff seeks to foreclose on a mortgage encumbering residential real property located at 80 Elizabeth Street, New York, New York. The mortgage, dated September 15, 2004, was given by Defendant Lewis Wu ("Wu") to non-party HSBC Mortgage Corporation (USA) to secure a loan with an original principal amount of $300,000.00. The indebtedness is evidenced by a home equity line agreement of the same date as the mortgage. Plaintiff commenced this action alleging inter alia that Defendant Wu defaulted in repayment of the loan secured by the mortgage. Defendant Wu answered and pied seventeen affirmative defenses, including lack of standing. Now, Plaintiff moves for summary judgment against the appearing Defendant, to strike his answers and affirmative defenses, for ;-; an order of reference and to amend the caption. Defendant opposes the motion. '~:•

In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to :.:. judgment as a matter of law though proof of the mortgage, the note, and evidence of Defendants' default '; in repayment (see eg US. Bank, NA. v James, 180 AD3d 594 [1 st Dept 2020]; Bank of NYv Knowles, 151 AD3d 596 [I5t Dept 2017]; Fortress Credit Corp. v Hudson Yards, LLC, 78 AD3d 577 [!5 1 Dept 2010]). Based upon Defendants' affirmative defense, Plaintiff was also required to demonstrate it had standing when this action was commenced (see eg Wells Fargo Bank, NA. v Tricario, 180 AD3d 848 [2 nd Dept 2020]). Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780 [1 st Dept 2019]). A plaintiff may rely on evidence from persons with personal knowledge of the facts, documents in admissible form and/or persons with knowledge derived from produced admissible records

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(see eg US Bank NA. v Moulton, l 79 AD3d 734, 738 [2d Dept 2020]). No particular set of business records must be proffered, as long as the admissibility requirements of CPLR 4518[ a] are fulfilled and the records evince the facts for which they are relied upon (see eg Citigroup v Kopelowitz, 147 AD3d 1014, 1015 [2d Dept 2017]).

Plaintiffs motion was supported with an affirmation from Cynthia Wallace ("Wallace"), a Second Assistant Vice-President for Specialized Loan Servicing, LLC ("SLS") the alleged servicer and attorney-in-fact Meb Loan Trust VII, US Bank National Association, not in its individual capacity but solely as Trustee successor in interest to Plaintiff. Attached to Wallace's affidavit was the supporting documentation referred to therein. Wallace laid a proper foundation for the admission of SLS' s records into evidence under CPLR §4518 (see Bank of NY. Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]). The records of other servicers were also admissible since Wallace sufficiently established that those records were received from their maker and incorporated into the records SLS kept and that it routinely relied upon such documents in its business (see US Bank NA. v Kropp-Somoza, 191 AD3d 918 [2d Dept 2021 ]). Further, the records referenced by Wallace were annexed to the moving papers (cf Deutsche Bank Natl. Trust Co. v Kirschenbaum, 187 AD3d 569 [1 st Dept 2020]). The indebtedness was fJ' also established based on the terms of the loan modification executed by Wu on February 15, 2006 (see 1 Redrock Kings, LLC v Kings Hotel, Inc., I 09 AD3d 602 [2d Dept 2013]; EMC Mortg. Corp. v Stewart, 2 .1 AD3d 772 [2d Dept 2003 ]). In sum, the affidavits and referenced documents sufficiently evidenced the note and mortgage. ;;

jf 1,"·

As to the Mortgagor's default, it "is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form" (Deutsche Bank Natl. Trust Co. v McGann, 183 AD3d 700, 702 [2d Dept 2020]). Here, Wallace's review of the attached account records demonstrated that the Mortgagor defaulted in repayment under the note (see eg ING Real Estate Fin. (USA) LLC v Park Ave. Hotel Acquisition, LLC, 89 AD3d 506 [ !51 Dept 2011 ]).

As to standing in a foreclosure action, it is established in one of three ways: [ 1] direct privity between mortgagor and mortgagee, [2] physical possession of the note prior to commencement of the action that contains an indorsement in blank or bears a special indorsement payable to the order of the plaintiff either on its face or by allonge, and [3] assignment of the note to Plaintiff prior to commencement of the action (see eg Wells Fargo Bank, NA. v Tricario, 180 AD3d 848 [2d Dept 2020]; Wells Fargo Bank, NA v Ostiguy, 127 AD3d 1375 [3d Dept 2015]). Here, Plaintiff, demonstrated with I the affidavit of Wallace and the written assignment of the mortgage dated January 21, 2012, that it was ,, l j the holder of the note when the action was commenced (see PNC Bank, NA Salcedo, 161 AD3d 571 [!5 1 Dept 2018]). (see PNC Bank, NA Salcedo, 161 AD3d 571 [!5 1 Dept 2018]). Although an assignment of ,i,· a mortgage is ordinarily a nullity in this context, the within assignment expressly stated that the 11

mortgage was assigned together with "with all the moneys now due and owing". This evidence ,i st sufficiently established conveyance of the note (see US Bank Natl. Assn. v Ezugwu, 162 AD3d 613 [1 Dept 2018]; GRP Loan, LLC v Taylor, 95 AD3d 1172 [2d Dept 2012]).

Accordingly, Plaintiff demonstrated primafacie the note, mortgage, Defendant's default in repayment thereunder as well as its standing.

In opposition, Defendant Wu proffers as his sole legal argument that Plaintiff failed to comply with the pre-foreclosure notice requirements under RPAPL §§1303 and 1304. Wu did not expressly

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plead reliance on this statute as an affirmative defense.

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2024 NY Slip Op 30543(U), Counsel Stack Legal Research, https://law.counselstack.com/opinion/hsbc-bank-usa-na-v-wu-nysupctnewyork-2024.