On April 07, 2021 a
Exhibit,Appendix
was filed
involving a dispute between
Deutsche Bank National Trust Company
As Trustee Of The Residential Asset Securitiztion Trust 2006-A6, Mortgage Pass-Through Certificates, Series 2006-F Under The Pooling And Servicing Agreement Dated May 1, 2006,
and
Capital One Bank Usa, N.A.,
Citibank, N.A.,
Commissioner Of Taxation And Finance,
Discover Bank,
Empire Portfolios, Inc.,
Gemini Asset Recoveries, Inc.,
Jane Doe,
Jane Doe
Refused Name S H A As John Doe #1,
John Doe,
Mortgage Electronic Registration Systems, Inc.
As Nominee For Indymac Bank, Fsb,
New York State Department Of Taxation And Finance,
Olga Gomez
Heir To The Estate Of Anthony Gomez,
People Of The State Of New York,
United States Of America,
Unknown Heirs To The Estate Of Anthony Gomez
If Living And If Dead, The Respective Heirs-At-Law, Next-Of-Kin, Distributees, Executors, Administrators, Trustees, Devisees, Legatees, Assignees, Lienors, Creditors And Successors In Interest And Generally All Persons Having Or Claiming Under, By,
for Real Property - Mortgage Foreclosure - Residential
in the District Court of Suffolk County.
Preview
FILED:ShortFormOrder
SUFFOLK COUNTY CLERK 11/14/2022 09:35 AM INDEX NO. 037613/2012
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2022
SUPREME COURT - STATE OF NEW YORK
IAS PART 18 - SUFFOLK COUNTY
PRE SENT: INDEX NO.: 37613/2012
HON. HOWARD H. HECKMAN JR., J.S.C. MOTION DATE: 04/17/2018
MOTION SEQ. NO.: #002 MG
----------------------------------------------------------X #003 MD
DEUTSCHE BANK NATIONAL TRUST PLAINTIFF'S ATTORNEY:
COMPANY BLANK ROME LLP
THE CHRYSLER BUILDING
Plaintiff, 405 LEXINGTON AVENUE
NEW YORK, NY 10174
-against-
UNKNOWN HEIRS TO THE ESTATE OF
ANTHONY GOMEZ DEFENDANT'S ATTORNEY:
RAYMOND LANG & ASSOCIATES
532 BROADHOLLOW ROAD
Defendants. SUITE 114
--------------------------------------------------------------X MELVILLE, NY 11747
Upon the followingpapers numbered 1 to 41 read on this
motion : NoticeofMotion/ Order to Show Cause and
papers 1- 23 ;Noticeof Cross Motion and papers 24-41 ;Answering Affidavits
and supportingpapers_
supporting supporting
; ReplyingAffidavits
and supporting papers____; Other_ ; (and
afterhearingcounsel insupport and opposedto the motion)it is,
ORDERED that this motion by plaintiff Deutsche Bank National Trust Co. seeking an order:
1) granting summary judgment striking the answer of the defendant Olga Gomez; 2) substituting
Deutsche Bank National Trust Company, as Trustee for Residential Asset Securitization Trust Series
2006-A6 Mortgage Pass-Through Certificates, Series 2006-F as the named party plaintiff in place
and stead of Deutsche Bank National Trust Company, as Trustee of the Residential Asset
Securitization Trust 2006-A6, Mortgage Pass-Through Certificates, Series 2006-F under the Pooling
and Servicing Agreement dated May 1, 2006; 3) deeming all appearing and non-appearing
defendants in default; 4) amending the caption; and 5) appointing a referee to compute the sums due
and owing to the plaintiff in this mortgage foreclosure action is granted; and itis further
ORDERED that the cross motion by defendant Olga Gomez seeking an order pursuant to
CPLR 3212 & 3408 & RPAPL 1304 denying plaintiff's motion and dismissing plaintiff's complaint
or, in the alternative, compelling plaintiff to offer defendant Olga Gomez a loan modification and
attorneys'
imposing sanctions in the form of an award of fees and costs, is denied; and itis further
ORDERED that plaintiff is directed to serve a copy of this order amending the caption upon
the Calendar Clerk of the Court; and itis further
ORDERED that plaintiff is directed to serve a copy of this order with notice of entry upon
all parties who have appeared and not waived further notice pursuant to CPLR 2103(b)(1),(2) or (3)
within thirty days of the date of this order and to promptly filethe affidavits of service with the Clerk
of the Court; and itis further
FILED: SUFFOLK COUNTY CLERK 11/14/2022 09:35 AM INDEX NO. 037613/2012
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2022
ORDERED that a conference shall be held at 10:00 a.m. on June 13, 2018 at the Supreme
Court Courthouse, 1 Court Street, Rm. A301, Riverhead, New York.
Plaintiff's action seeks to foreclose a mortgage in the sum of $496,000.00 executed by
Anthony Gomez on April 7, 2006 in favor of IndyMac Bank, F.S.B. On that same date Gomez also
executed a promissory note promising the re-pay the entire amount of the indebtedness. By
assignment dated July 23, 2012 the mortgage and note were assigned to plaintiff. Plaintiff claims
that Gomez defaulted in timely monthly mortgage payments under the terms of the original
making
note and mortgage beginning March 1, 2011. Plaintiff commenced this action by filing a notice of
pendency, summons and complaint in the Suffolk County Clerk's Office on December 17, 2012. The
mortgagor, Anthony Gomez, died on December 25, 2012. Plaintiff served and filed a supplemental
summons and amended complaint dated December 18, 2015. Defendant Olga Gomez served an
amended answer with counterclaims dated January 25, 2016. Plaintiff's motion seeks an order
granting summary judgment striking defendant's answer and for the appointment of a referee.
In opposition and in support of her cross motion, defendant Gomez claims that plaintiff failed
to act in good faith negotiations to offer her a loan modification and failed to prove that pre-
90-day
foreclosure RPAPL 1304 notices were mailed to the borrower in compliance with the statute.
Defendant claims that she is entitled to be considered as a candidate for a loan modification and that
plaintiff has wholly failed to negotiate with her since her husband's death. Defendant claims that as
a result of plaintiff's unjustified failure to engage in such negotiations plaintiff should be denied an
award for reasonable attorney's fees; should be denied an award of interest since the date of default;
should be sanctioned for exemplary darnages; and that defendant should be awarded recovery of
attorney's fees from the plaintiff.
The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material
question of fact from the case. The grant of summary judgment is appropriate only when itis clear
that no material and triable issues of fact have been presented (Sillman v. Twentieth Century-Fox
Film Corp., 3 NY2d 395 (1957)). The moving party bears the initial burden of proving entitlement
to summary judgment (Winegrad v. NYU Medical Center, 64 NY2d 851 (1985)). Once such proof
has been proffered, the burden shifts to the opposing party who, to defeat the motion, must offer
evidence in admissible form, and must set forth factssufficient to require a trial of any issue of fact
(CPLR 3212(b); Zuckerman v. City of New York, 49 NY2d 557 (1980)). Summary judgrnent shall
only be granted when there are no issues of material fact and the evidence requires the court to direct
a judgment in favor of the movant as a matter of law (Friends of Animals v. Associated Fur
Manufacturers, 46 NY2d 1065 (1979)).
Entitlement to summary judgment in favor of the foreclosing plaintiff is established, prima
facie by the plaintiff's production of the mortgage and the unpaid note, and evidence of default in
(2"d
payment (see Wells Fargo Bank N A. v. Erobobo, 127 AD3d 1176, 9 NYS3d 312 Dept., 2015);
(2nd
Wells Fargo Bank, N.A. v. Ali, 122 AD3d 726, 995 NYS2d 735 Dept., 2014)).
Plaintiff has submitted sufficient evidence to show that itis the holder of the note and
mortgage and that the mortgagor has defaulted under the terms of the mortgage by failing to make
timely monthly mortgage payments since March 1, 2011. The bank, having proven entitlement to
-2-
FILED: SUFFOLK COUNTY CLERK 11/14/2022 09:35 AM INDEX NO. 037613/2012
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2022
itis incumbent upon the defendant to submit relevant, evidentiary proof
summary judgment,
substantive to raise genuine issues of fact concerning why the lender is not entitled to
sufficiently
foreclose the mortgage. Defendant has wholly failed to do so.
With respect to the two affirmative defenses that defendant seeks to assert in opposition to
plaintiff's summary judgment motion concerning her right to a CPLR 3408 conference and
plaintiff's alleged failure to comply with RPAPL 1304, the record shows that the only party opposing
plaintiff's motion is the borrower's wife, Olga Gomez, who never signed the mortgage or the
promissory note which are the subject of the underlying foreclosure action. Defendant Olga Gomez
is not therefore an obligor under the terms of those documents, since she has no obligation to repay
the loan. Under such circumstances, neither of the related statutes (CPLR 3408 & RPAPL 1304)
mandate a court settlement conference or that 90-day notices be served upon the non-obligor spouse
"borrowers"
of a "borrower". The statutes apply only to who have agreed to repay the sums
borrowed from the mortgage lender. Accordingly, neither affirmative defense is viable since Olga
"borrower"
Gomez is not a to whom the statutes require the scheduling of a court conference or to
whom a 90-day notice must be sent (see U S. Bank v. Hasan, 42 Misc.3d 1221(A), 986 NYS2d 869
(Table)(Sup.Ct., Kings Cty., 2014)) and defendant does not have capacity to raise the issue of
plaintiff's alleged failure to serve an RPAPL 1304 notice on behalf of the actual borrower/her
(2"4
husband (see Wells Fargo Bank v. Bowie, 89 AD3d 931, 932 NYS2d 702 Dept., 2011); NY CTL
(2nd
1996-1 Trust v. King, 13 AD3d 429, 787 NYS2d 61 Dept., 2004)). Moreover, even were this
court to consider the merits of defendant's claim, plaintiff has submitted sufficient admissible
evidence to prove proper service of the RPAPL 1304 notice (HSBC Bank USA, N.A. v. Ozcan, 154
(2"d
AD3d 822, 64 NYS3d 28 Dept., 2017)).
With respect to the remaining claims asserted by the defendant, no legal basis exists to
impose any form of sanctions against the mortgage lender since this defendant has no established
legal right to a court mandated settlement conference or a loan modification. However, given the
circumstances which are detailed in defendant's opposing papers, the court deems itappropriate to
schedule a conference to determine whether the defendant may be considered eligible for some form
of loan modification. Such conference shall be held at 10:00 a.m. on June 13, 2018 at the Supreme
Court Courthouse, 1 Court Street, Rm A 301, Riverhead, New York 11901.
Accordingly defendant's cross motion is denied in its entirety and plaintiff's motion seeking
an order granting summary judgment and for the appointment of a referee must be granted. The
proposed order for the appointment of a referee has been signed simultaneously with the execution of
this order.
Hon. Howard H. Heckman Jr
Dated: May 30, 2018
J,S.C.
-3-
Preview
FILED:ShortFormOrder SUFFOLK COUNTY CLERK 11/14/2022 09:35 AM INDEX NO. 037613/2012 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2022 SUPREME COURT - STATE OF NEW YORK IAS PART 18 - SUFFOLK COUNTY PRE SENT: INDEX NO.: 37613/2012 HON. HOWARD H. HECKMAN JR., J.S.C. MOTION DATE: 04/17/2018 MOTION SEQ. NO.: #002 MG ----------------------------------------------------------X #003 MD DEUTSCHE BANK NATIONAL TRUST PLAINTIFF'S ATTORNEY: COMPANY BLANK ROME LLP THE CHRYSLER BUILDING Plaintiff, 405 LEXINGTON AVENUE NEW YORK, NY 10174 -against- UNKNOWN HEIRS TO THE ESTATE OF ANTHONY GOMEZ DEFENDANT'S ATTORNEY: RAYMOND LANG & ASSOCIATES 532 BROADHOLLOW ROAD Defendants. SUITE 114 --------------------------------------------------------------X MELVILLE, NY 11747 Upon the followingpapers numbered 1 to 41 read on this motion : NoticeofMotion/ Order to Show Cause and papers 1- 23 ;Noticeof Cross Motion and papers 24-41 ;Answering Affidavits and supportingpapers_ supporting supporting ; ReplyingAffidavits and supporting papers____; Other_ ; (and afterhearingcounsel insupport and opposedto the motion)it is, ORDERED that this motion by plaintiff Deutsche Bank National Trust Co. seeking an order: 1) granting summary judgment striking the answer of the defendant Olga Gomez; 2) substituting Deutsche Bank National Trust Company, as Trustee for Residential Asset Securitization Trust Series 2006-A6 Mortgage Pass-Through Certificates, Series 2006-F as the named party plaintiff in place and stead of Deutsche Bank National Trust Company, as Trustee of the Residential Asset Securitization Trust 2006-A6, Mortgage Pass-Through Certificates, Series 2006-F under the Pooling and Servicing Agreement dated May 1, 2006; 3) deeming all appearing and non-appearing defendants in default; 4) amending the caption; and 5) appointing a referee to compute the sums due and owing to the plaintiff in this mortgage foreclosure action is granted; and itis further ORDERED that the cross motion by defendant Olga Gomez seeking an order pursuant to CPLR 3212 & 3408 & RPAPL 1304 denying plaintiff's motion and dismissing plaintiff's complaint or, in the alternative, compelling plaintiff to offer defendant Olga Gomez a loan modification and attorneys' imposing sanctions in the form of an award of fees and costs, is denied; and itis further ORDERED that plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of the Court; and itis further ORDERED that plaintiff is directed to serve a copy of this order with notice of entry upon all parties who have appeared and not waived further notice pursuant to CPLR 2103(b)(1),(2) or (3) within thirty days of the date of this order and to promptly filethe affidavits of service with the Clerk of the Court; and itis further FILED: SUFFOLK COUNTY CLERK 11/14/2022 09:35 AM INDEX NO. 037613/2012 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2022 ORDERED that a conference shall be held at 10:00 a.m. on June 13, 2018 at the Supreme Court Courthouse, 1 Court Street, Rm. A301, Riverhead, New York. Plaintiff's action seeks to foreclose a mortgage in the sum of $496,000.00 executed by Anthony Gomez on April 7, 2006 in favor of IndyMac Bank, F.S.B. On that same date Gomez also executed a promissory note promising the re-pay the entire amount of the indebtedness. By assignment dated July 23, 2012 the mortgage and note were assigned to plaintiff. Plaintiff claims that Gomez defaulted in timely monthly mortgage payments under the terms of the original making note and mortgage beginning March 1, 2011. Plaintiff commenced this action by filing a notice of pendency, summons and complaint in the Suffolk County Clerk's Office on December 17, 2012. The mortgagor, Anthony Gomez, died on December 25, 2012. Plaintiff served and filed a supplemental summons and amended complaint dated December 18, 2015. Defendant Olga Gomez served an amended answer with counterclaims dated January 25, 2016. Plaintiff's motion seeks an order granting summary judgment striking defendant's answer and for the appointment of a referee. In opposition and in support of her cross motion, defendant Gomez claims that plaintiff failed to act in good faith negotiations to offer her a loan modification and failed to prove that pre- 90-day foreclosure RPAPL 1304 notices were mailed to the borrower in compliance with the statute. Defendant claims that she is entitled to be considered as a candidate for a loan modification and that plaintiff has wholly failed to negotiate with her since her husband's death. Defendant claims that as a result of plaintiff's unjustified failure to engage in such negotiations plaintiff should be denied an award for reasonable attorney's fees; should be denied an award of interest since the date of default; should be sanctioned for exemplary darnages; and that defendant should be awarded recovery of attorney's fees from the plaintiff. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material question of fact from the case. The grant of summary judgment is appropriate only when itis clear that no material and triable issues of fact have been presented (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957)). The moving party bears the initial burden of proving entitlement to summary judgment (Winegrad v. NYU Medical Center, 64 NY2d 851 (1985)). Once such proof has been proffered, the burden shifts to the opposing party who, to defeat the motion, must offer evidence in admissible form, and must set forth factssufficient to require a trial of any issue of fact (CPLR 3212(b); Zuckerman v. City of New York, 49 NY2d 557 (1980)). Summary judgrnent shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 (1979)). Entitlement to summary judgment in favor of the foreclosing plaintiff is established, prima facie by the plaintiff's production of the mortgage and the unpaid note, and evidence of default in (2"d payment (see Wells Fargo Bank N A. v. Erobobo, 127 AD3d 1176, 9 NYS3d 312 Dept., 2015); (2nd Wells Fargo Bank, N.A. v. Ali, 122 AD3d 726, 995 NYS2d 735 Dept., 2014)). Plaintiff has submitted sufficient evidence to show that itis the holder of the note and mortgage and that the mortgagor has defaulted under the terms of the mortgage by failing to make timely monthly mortgage payments since March 1, 2011. The bank, having proven entitlement to -2- FILED: SUFFOLK COUNTY CLERK 11/14/2022 09:35 AM INDEX NO. 037613/2012 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2022 itis incumbent upon the defendant to submit relevant, evidentiary proof summary judgment, substantive to raise genuine issues of fact concerning why the lender is not entitled to sufficiently foreclose the mortgage. Defendant has wholly failed to do so. With respect to the two affirmative defenses that defendant seeks to assert in opposition to plaintiff's summary judgment motion concerning her right to a CPLR 3408 conference and plaintiff's alleged failure to comply with RPAPL 1304, the record shows that the only party opposing plaintiff's motion is the borrower's wife, Olga Gomez, who never signed the mortgage or the promissory note which are the subject of the underlying foreclosure action. Defendant Olga Gomez is not therefore an obligor under the terms of those documents, since she has no obligation to repay the loan. Under such circumstances, neither of the related statutes (CPLR 3408 & RPAPL 1304) mandate a court settlement conference or that 90-day notices be served upon the non-obligor spouse "borrowers" of a "borrower". The statutes apply only to who have agreed to repay the sums borrowed from the mortgage lender. Accordingly, neither affirmative defense is viable since Olga "borrower" Gomez is not a to whom the statutes require the scheduling of a court conference or to whom a 90-day notice must be sent (see U S. Bank v. Hasan, 42 Misc.3d 1221(A), 986 NYS2d 869 (Table)(Sup.Ct., Kings Cty., 2014)) and defendant does not have capacity to raise the issue of plaintiff's alleged failure to serve an RPAPL 1304 notice on behalf of the actual borrower/her (2"4 husband (see Wells Fargo Bank v. Bowie, 89 AD3d 931, 932 NYS2d 702 Dept., 2011); NY CTL (2nd 1996-1 Trust v. King, 13 AD3d 429, 787 NYS2d 61 Dept., 2004)). Moreover, even were this court to consider the merits of defendant's claim, plaintiff has submitted sufficient admissible evidence to prove proper service of the RPAPL 1304 notice (HSBC Bank USA, N.A. v. Ozcan, 154 (2"d AD3d 822, 64 NYS3d 28 Dept., 2017)). With respect to the remaining claims asserted by the defendant, no legal basis exists to impose any form of sanctions against the mortgage lender since this defendant has no established legal right to a court mandated settlement conference or a loan modification. However, given the circumstances which are detailed in defendant's opposing papers, the court deems itappropriate to schedule a conference to determine whether the defendant may be considered eligible for some form of loan modification. Such conference shall be held at 10:00 a.m. on June 13, 2018 at the Supreme Court Courthouse, 1 Court Street, Rm A 301, Riverhead, New York 11901. Accordingly defendant's cross motion is denied in its entirety and plaintiff's motion seeking an order granting summary judgment and for the appointment of a referee must be granted. The proposed order for the appointment of a referee has been signed simultaneously with the execution of this order. Hon. Howard H. Heckman Jr Dated: May 30, 2018 J,S.C. -3-