Wells Fargo Bank, N.A. v. Barry

2024 NY Slip Op 33504(U)

• Court: New York Supreme Court, Kings County
• Decided: September 30, 2024
• Docket: Index No. 537535/2022
• Status: Unpublished

Opinion

Wells Fargo Bank, N.A. v Barry 2024 NY Slip Op 33504(U) September 30, 2024 Supreme Court, Kings County Docket Number: Index No. 537535/2022 Judge: Carolyn Mazzu Genovesi 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. INDEX NO. 537535/2022 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 10/03/2024

At an IAS Part FRP-5 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 day of 2024. SEP 3 0 2024 Present: Hon. Carolyn Mazzu Genovesi ------------------------------------------------------------------X WELLS FARGO BANK, N.A.,

Plaintiff~ -against- DECISION AND ORDER

CAROL BARRY, LEILA BARRY, SEAN PILGRIM, Index No.: 537535/2022 NEW YORK CITY PARKING VIOLATIONS Motion Cal. No.: 32 BUREAU. CITY OF NEW YORK ENVIRONMENTAL Motion Seq. l CONTROL BOARD, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR STERLING NATIONAL MORTGAGE COMPANY, INC.,

·'JOHN DOE #1 '' !hrough and including "JOI-IN DOE #25," the defendants last named in quotation marks being intended to designate tenants or occupants in possession of the herein described premises or portions thereot if any there be, said names being fictitious, their true name being unknown to plaintiff,

Defendants, ------------------------------------------------------------------X The following papers were read on this motion, pursuant to CPLR 2219(a):

Papers Numbered Arn ended Notice of Motion (MS# 1), Affinnation in Suppo11, Exhibits 60 40-59 Affinnation in Opposition, Statement of Material Facts 6? 63 Reply Affirmation 64

In an action to foreclose a mortgage, plaintiff moves for summary judgment, default

judgment and the appointment of a referee to compute the amount due to plaintiff.

In opposition to plaintiffs motion for summary judgment defendants argue that plaintiff

has not established the mailing under RP APL § 1304 for the necessary notices of foreclosure or

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default on the mortgage. Defendants assert that under CPLR 4518 the plaintiff did not establis[1

that the business records were sufficient to establish the amounts of the default alleged, both

because the plaintiff bank did not provide sufficient evidentiary foundation in its records to

establish summary judgment regarding the recording and record keeping necessary and for

failure to provide legible documents. Defendants argue that the records provided are only a

"series of unintelligible codes and entries" which me insufficient to establish tbe factual

allegations of default. Additiona11y, detendants argue that plaintiff did not provide testimony

regarding the method of the mailing of the notices and that plaintiff failed to serve a Notice of

Default pursuant to the terms of the mortgage.

Plaintiff asserts that the affidavit to establish a prima facia case is an affidavit of

plaintiffs representative and that the business records provided pursuant to CPLR 4518 are

admissible, even if there is a lack of personal knowledge, _as that goes to the weight of the

evidence and not to the issue of admissibility.

A motion for summary judgment will be granted it: upon all the papers and proof

submitted, the cause of action or defense is established sufficiently to warrant directing judgment

in favor of any party as a matter of law. CPLR 3212 (b); Gilbert Frank Corp. v. Federal Ins. Co.,

70 N.Y.2d 966, 967 (I 988); Zuckerman v. City of'New York, 49 N.Y.2d 557, 562 (1980). On

such a motion, the evidence will be construed in a light most favorable to the paity against whom

summary judgment is sought. Spinelli v. Procassini, 258 A.D.2d 577 (2d Dep't 1999); Tassone v.

Johannemann, 232 A.D.2d 627,628 (2d Dep't 1996); Weiss v. Garfield, 2t A.D.2d !56, 158 (3d

Dep 't 1964). The movant must therefore offer sufficient evidence in admissible form to eliminate

all material questions of fact. Alvarez v_ PrO,\])ect Ho,r,p, 68 N. Y .2d 320 (1986); Zuckerman v.

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1065 (1979). ··To establish a prima fade case in an action to foreclose a mortgage, a plaintiff

must produce the mortgage, the unpaid note, and evidence of default." JP At/organ Chase Bank,

Nat. Ass'11 v. Weinberger. 142 A.D.3d 643,644 (2d Dep't 2016).

The court finds that plaintiff has met its burden regarding the admissibility of the records

by establishing a foundation for their admission as the affirmation is made by a person who is

sufficiently familiar with the corporate records. Frn1her, the court finds that the records are

adm'issible and can be relied on because plaintiff established the records were incorporated into

its own records and relied on. Deutsche Bank Nat. Trusr Co. v. Monica, 131 A.D.3d 737 (2d

Dep 't 201 S). Moreover, the court finds all the records are legible, clear and understimdable and

not ·'unintelligible."

Plaintiff further argues that they are not required to comply \Vith RP APL notices as the

property was not owner-occupied.

The court finds that the notices pursuant to RP APL§ 1304 do not apply in this matter as

the property in the action to foreclose was not the defendant's residence and not occupied by

delE:ndant. The property is a I to 4 family house, and it is undisputed that the mortgage being

foreclosed on included a l to 4 family rider which deleted an "occupancy-by-borrower"

requirement. The Second Department has found that such a rider by itself is sufficient to

establish that the mortgage loan is not a home loan as defined in RP APL § 1304. ~Vall Street

,'\4ortgage Bankers. Ltd. v. Berquin, 213 A.D.Jd 972 (2d Dep't 2023); U.S Bank l\/ational

Association v. Simmons, 230 A.D.3d 621 (2d Dep't2024).

Regarding the defendant's assertion that the notice ofdefau!l pursuant to the terms of the

mortgage was not proved, the plaintiff asserts that the defense ,vas waived as a matter of law

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pursuant to CPLR 3015 which requires the denial of performance of a contractual condition

precedent to be made specifically and with particularity in its Ans\\1Cr.

Here, the court finds that the Answer failed to allege the plaintiff violated the contractual

condition precedence with sufficient specificity. The court finds that defendant's Answer makes

no mention of the failure to provide the 30-day notice of default. Therefore, the defense is

waived as a matter of law. Nationstar Mtge., LLC v. Vordermeier, 165 A.D.3d 822 (2d Dep't

2018).

Accordingly, plaintiff's motion for summary judgment for default and appointment ofa

referee is GRANTED. The order of default and the appointment of a referee is attached and

incorporated by reference.

ENTER

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