Preview
FILED: QUEENS COUNTY CLERK 10/26/2022 03:34 PM INDEX NO. 716943/2017
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/26/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
WELLS FARGO BANK, N.A., AS TRUSTEE, FOR THE Index No. 716943/2017
CERTIFICATEHOLDERS OF MORGAN STANLEY ABS
CAPITAL I INC., TRUST 2005-WMC5, MORTGAGE PASS-
NOTICE OF ENTRY
THROUGH CERTIFICATES, SERIES 2005-WMC5,
Plaintiff,
-against-
RONFAYZI INC.; PEOPLE OF THE STATE OF NEW
YORK; NEW YORK CITY ENVIRONMENTAL CONTROL
BOARD; NEW YORK CITY TRANSIT ADJUDICATION
BUREAU; NEW YORK CITY DEPARTMENT OF
FINANCE; JOHN DOE (Those unknown tenants, occupants,
persons or corporations or their heirs, distributees, executors,
administrators, trustees, guardians, assignees, creditors or
successors claiming an interest in the mortgaged premises),
Defendants.
PLEASE TAKE NOTICE, that the within is a true copy of the Memorandum of the
Honorable Robert I. Caloras, J.S.C. dated October 24, 2022, and duly filed with the Clerk of the
Supreme Court of the State of New York, Queens County, on October 25, 2022.
Dated: New York, New York
October 26, 2022
HINSHAW & CULBERTSON LLP
Attorneys for Plaintiff
By: /s/ Ronald H. Park
Ronald H. Park, Esq.
800 Third Avenue, 13th Floor
New York, NY 10022
Tel: (212) 471-6200
To: (VIA NYSCEF)
Terence D. Watson, Esq.
Fidelity National Law Group
2950 Express Drive South, Suite 109
Islandia. NY I 1749
Co-Counsel for Plaintiff
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Charles E. Gary
300 Motor Parkway – Suite 205
Hauppauge, NY 11788-5522
Counsel for Defendant, People of the State of New York
& Metropolitan Transportation Authority
Bernard J. Tordesillas
375 Pearl Street – 30th Floor
New York, NY 10038
Counsel for Defendant,
New York City Department of Finance
To: (VIA FIRST CLASS MAIL)
Ronfayzi Inc.
99 Washington Avenue, 6th Floor
Albany, NY 12231
&
6656 Thornton Place
Rego Park, NY 11374
Defendant
New York City Environmental Control Board
100 Church Street, 1st Floor
New York, NY 10007
Defendant
New York City Transit Adjudication Bureau
130 Livingston Street
Brooklyn, NY 11434
Defendant
Cynthia Wright s/h/a John Doe #1
177-26 Ursina Road
Saint Albans, NY 11434
Defendant
Cooper Wright s/h/a John Doe #2
177-26 Ursina Road
Saint Albans, NY 11434
Defendant
Damion Wright s/h/a John Doe #3
177-26 Ursina Road
Saint Albans, NY 11434
Defendant
Chris Wright s/h/a John Doe #4
177-26 Ursina Road
Saint Albans, NY 11434
Defendant
Walter McDowell s/h/a John Doe #5
177-26 Ursina Road
Saint Albans, NY 11434
Defendant
Kanika Meade s/h/a John Doe #6
2
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177-26 Ursina Road
Saint Albans, NY 11434
Defendant
Almando Izquierdo s/h/a John Doe #7
177-26 Ursina Road
Saint Albans, NY 11434
Defendant
3
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MEMORANDUM
SUPREME COURT OF THE STATE OF NEW YORK PART 36
COUNTY OF QUEENS HON. ROBERT I. CALORAS
-----------------------------------------------------------------x
WELLS FARGO BANK, N.A., AS TRUSTEE, FOR
THE CERTIFICATEHOLDERS OF MORGAN
STANLEY ABS CAPITAL I INC., TRUST 2005-
WMC5, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-WMC5, Index No. 716943/17
Plaintiff, Seq. No 1
-against-
FILED
RONFAYZI INC.; PEOPLE OF THE STATE
OF NEW YORK; NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD;
NEW YORK CITY TRANSIT ADJUDICATION 10/25/2022
BUREAU; NEW YORK CITY DEPARTMENT
COUNTY CLERK
OF FINANCE; JOHN DOE (Those unknown QUEENS COUNTY
tenants, occupants, persons or corporations or
their heirs, distributees, executors, administrators,
trustees, guardians, assignees, creditors or successors
claiming an interest in the mortgaged premises.),
Defendants. Dated: October 24, 2022
----------------------------------------------------------------x
Plaintiff alleges the following in the Complaint: on or about February 23, 2005 Walter
McDowell (Walter), who died on January 28, 2013, executed a note in the amount of $250,000.00 in
favor of WMC Mortgage Corp., and as security for payment of the note, Walter and Merline
McDowell AKA Merlene McDowell (Merline) by attorney in fact, who died on November 25, 2009,
executed a mortgage on the property located at 177-26 Ursina Road, Saint Albans, New York. The
mortgage was subsequently assigned to Plaintiff. At the time the note and mortgage were executed,
Walter and Merline were in title to the property. On May 16, 2016, Walter McDowell III (Walter
III), as the sole surviving heir of Merline and the surviving joint tenant of Merline, transferred the
property to Defendant Ronfayzi Inc. (Ronfayzi), who is the current owner of the property. Walter III
failed to comply with the conditions of the note and mortgage by failing to make the payment due on
September 1, 2012, and all subsequent payments.
In his Verified Answer, Almando Izquierdo (Izquierdo) asserted the following affirmative
defenses: lack of standing; failure to comply with the requirements for the notice of default in the
mortgage agreement; failure to comply with RPAPL 1304; attorney’s fees pursuant to RPL 282; and
excessive interest pursuant to CPLR 5001(a). In addition, Izquierdo also asserted the following:
The transfer of ownership form Merline McDowell to Merline McDowell and
Walter McDowell, II as joint tenants with rights of survivorship was obtained
through fraudulent means through the use of a power of attorney that was
fraudulently obtained while Merline McDowell was hospitalized. Thus the
subject mortgage that Walter McDowell, II obtained using this power of
attorney was obtained under fraudulent means. Likewise, the conveyance of
the subject property to Ronfayzi, Inc. was done through fraudulent means
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because Walter McDowell, III did not have legal authority to transfer the
property.
In the first branch of the instant motion, Plaintiff moves for summary judgment against
Defendant Izquierdo and to dismiss Izquierdo’s affirmative defenses. Plaintiff submitted Izquierdo’s
deposition transcript, and an affidavit from Patrick Riquelme (Riquelme), an officer for Select
Portfolio Servicing, Inc. (SPS). Annexed to Riquelme’s affidavit are the following documents:
Hello letter, dated September 27, 2012; Limited Power of Attorney; note; mortgage; assignment;
notices of default; 90 day notices; letter log and contact history; and proof of filing statement.
Riquelme stated the following: on October 1, 2012 SPS began servicing the subject loan. The
records created by the prior servicer for this loan were integrated and boarded into SPS’s systems,
and are now a part of SPS’s business records. He acquired personal knowledge of this loan by
personally examining the business records pertaining to this loan. The Note and Mortgage were
thereafter assigned and delivered from Mortgage Electronic Registration Systems, Inc., as nominee
for WMC Mortgage Corp. and assigned to Plaintiff pursuant to an assignment, dated May 24, 2012
and recorded on June 20, 2012. SPS, as custodian on behalf of Plaintiff, has been in possession of
the original Note, endorsed in blank, since March 9, 2015. Notice of Default, dated December 19,
2013, was mailed via first class mail and addressed to Walter at the property. Ninety-day pre-
foreclosure notices, with a list of at least five (5) housing counseling agencies (the "90-Day
Notices"),were mailed to Walter on October 18, 2013 by first-class mail and certified mail, return
receipt requested. According to the loan records, there is presently due and owing to Plaintiff the
principal sum of $223,012.11, together with interest thereon from August 1, 2012.
Plaintiff also submitted an affidavit from Cynthia May (May), an officer at SPS, and annexed
thereto, among other things, the following documents: mortgage; deed; power of attorney (POA).
May stated the following: Merline granted authority under the POA to Walter, Defendant Izquierdo,
and Carrie McDowell, to act “SEPARATELY” pursuant to the terms of the POA. Subsequently, by
deed, dated February 17, 2005 and recorded on April 15, 2006, Merline conveyed the property to
Walter and herself “as Joint Tenants with Rights of Survivorship”. Walter executed the mortgage on
his own behalf, as well as on behalf of Merline, pursuant to the POA that was recorded on the same
day as the mortgage. After Merline died on or about November 25, 2009, Walter, who acquired an
interest in the property with a right of survivorship, became the sole owner of the property. On or
about January 28, 2013, Walter died. By deed, dated May 26, 2016 and recorded on June 20, 2016,
Walter III "as sole surviving heir of WALTER MCDOWELL, deceased, the surviving joint tenant of
MERELENE (sic) MCDOWELL aka MARLINE (sic) MCDOWELL, deceased" conveyed the
property to Defendant Ronfayzi.
Based upon the foregoing, Plaintiff argues that it is entitled to summary judgment and that
Defendant Izquierdo’s affirmative defenses are without merit. Plaintiff argues that its predecessor in
interest did not have any notice of the alleged fraudulent transfer from Merline to Walter.
Furthermore, its predecessor in interest was a bona fide encumbrancer for value without notice of any
alleged fraud. As such, Plaintiff argues that the mortgage is protected under RPL 266. Plaintiff
further argues that even if the POA was induced by fraud or was forged, the mortgage is a valid and
enforceable lien on the property because: 1) Walter held an interest in the property that he was able
to encumber by virtue of the deed Merline executed conveying an interest in the property to him; 2)
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Walter acquired Merline’s interest in the property upon Merlene’s death, pursuant to the deed which
included a right of survivorship; and 3) upon Merline’s death, Walter’s interest in the property
became subject to the Mortgage under the after-acquired title doctrine.
In opposition, Defendant Izquierdo claims that he resides at the subject property. In or
around 2006, Walter (Izquierdo’s Uncle) added his name to the title without Izquierdo’s knowledge.
He claims that Walter forged Merline’s signature on the deed. In support thereof, he submitted an
unsigned report from Patricia Zippo, a Forensic Document Examiner, which purportedly confirmed
that Walter forged Merline’s signature on the deed. He also argues that this transfer was done in bad
faith and/or fraudulently because his Mother (Merline) “had been very clear in her wishes that she
wanted the property to pass to me upon her death”. He also argues Riquelme’s affidavit is
inadmissible hearsay, and that among other things, failed to establish that Plaintiff was in possession
of the note, the loan is in default, and Plaintiff has standing. In addition, Izquierdo requests that the
Court exercise its equitable powers to deny the instant motion.
In a residential mortgage foreclosure action, a Plaintiff establishes its prima facie entitlement
to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the
default (See, JPMorgan Chase Bank, N.A. v Mantle, 134 AD3d 903, 904 [2d Dept. 2015]; Deutsche
Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [2d Dept. 2015], lv denied 26 NY3d 917
[2016]; HSBC Bank, USA v Hagerman, 130 AD3d 683, 683-684 [2d Dept. 2015]). Here, the Court
finds that Plaintiff’s submissions established its prima facie entitlement to summary judgment by
submitting the unpaid note, endorsed in blank, the mortgage, and evidence of the deceased
Borrower’s default. The Court also finds that Plaintiff’s submissions established its prima facie
entitlement to dismissal of Defendant Izquierdo’s affirmative defenses. Both Riquelme’s and May’s
affidavit and the assignment annexed to their affidavit established that Plaintiff’s predecessor in
interest assigned the note and mortgage to Plaintiff by an assignment, dated May 24, 2012 and
recorded on June 20, 2012.
The Court also finds that Plaintiff’s submissions established that its predecessor in interest
was a bona fide encumbrancer for value, protected under RPL 266. RPL 266 provides that “[t]his
article does not in any manner affect or impair the title of a purchaser or incumbrancer for a valuable
consideration, unless it appears that he had previous notice of the fraudulent intent of his immediate
grantor, or of the fraud rendering void the title of such grantor”. The difference between a void deed
and a voidable deed is paramount in determining whether RPL 266 is applicable (Weiss v Phillips,
157 AD3d 1 [1st Dept. 2017]). “A void real estate transaction is one where the law deems that no
transfer actually occurred” (id.). Thereby, “if the deed is void, it does not pass title and cannot be
enforced even if title is later acquired by a bona fide purchaser” (id.). “Similarly, a lender who takes
a mortgage to a property subject to a void deed does not have anything to mortgage, so the lender's
mortgage is invalid as well” (id.). “In contrast, a voidable real estate transaction is one where a
transfer is deemed to have occurred, but can be revoked” (id.). Consequently, “[t]he interests of
subsequent bona fide purchasers or encumbrancers for value are thus not protected under Real
Property Law 266 when their title is derived from a forged deed or one that is the product of false
pretenses” (id.). In contrast, a deed procured by fraudulent inducement is merely voidable (id.), “and
a mortgagee which issues a mortgage to the grantee without notice of the fraud is protected in its
title” (Retek v 233 Associates, Inc., 41 Misc3d 1220[a] [Supreme Court, Kings County 2013]).
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Here, Plaintiff’s submissions established that pursuant to the POA, Walter was permitted to
act “separately”. After the POA was issued, Merline executed a deed transferring the property to
Walter and herself, as joint tenants. Consequently, Walter held title to the subject property when he
executed the loan. As such, Plaintiff established that its predecessor interest was a bona fide
encumbrancer for value subject to RPL 266. The Court also finds that Defendant Izquierdo’s
submissions failed to raise an issue of fact regarding Plaintiff’s entitlement to summary judgment and
dismissal of his affirmative defenses. Izquierdo’s claims regarding the affidavits Plaintiff submitted
from Riquelme and May are without merit. The Court also finds that Izquierdo’s submissions failed
to establish that the deed Merline executed, transferring the property to her and Walter, was a
forgery. The only evidence Izquierdo submitted in support of this claim was a report from Patricia
Zippo, a Forensic Document Examiner. Ms. Zippo’s report is unsworn and failed to specify her
purported qualifications as a handwriting expert (Hagan v General Motors Corp., 194 AD2d 766 [2d
Dept. 1993], lv denied 82 NY2d 658 [1993]). Consequently, Ms. Zippo’s report is inadmissible. The
Court also finds that Izquierdo’s remaining claims are without merit. Accordingly, the branch of
Plaintiff’s motion for summary judgment and dismissal of Defendant Izquierdo’s affirmative
defenses is granted. The remaining branches of the motion are granted as unopposed.
Submit order.
FILED ___________________________________
ROBERT I. CALORAS, J.S.C.
10/25/2022
COUNTY CLERK
QUEENS COUNTY
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FILED: QUEENS COUNTY CLERK 10/26/2022 03:34 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/26/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS WELLS FARGO BANK, N.A., AS TRUSTEE, FOR THE Index No. 716943/2017 CERTIFICATEHOLDERS OF MORGAN STANLEY ABS CAPITAL I INC., TRUST 2005-WMC5, MORTGAGE PASS- NOTICE OF ENTRY THROUGH CERTIFICATES, SERIES 2005-WMC5, Plaintiff, -against- RONFAYZI INC.; PEOPLE OF THE STATE OF NEW YORK; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; NEW YORK CITY DEPARTMENT OF FINANCE; JOHN DOE (Those unknown tenants, occupants, persons or corporations or their heirs, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises), Defendants. PLEASE TAKE NOTICE, that the within is a true copy of the Memorandum of the Honorable Robert I. Caloras, J.S.C. dated October 24, 2022, and duly filed with the Clerk of the Supreme Court of the State of New York, Queens County, on October 25, 2022. Dated: New York, New York October 26, 2022 HINSHAW & CULBERTSON LLP Attorneys for Plaintiff By: /s/ Ronald H. Park Ronald H. Park, Esq. 800 Third Avenue, 13th Floor New York, NY 10022 Tel: (212) 471-6200 To: (VIA NYSCEF) Terence D. Watson, Esq. Fidelity National Law Group 2950 Express Drive South, Suite 109 Islandia. NY I 1749 Co-Counsel for Plaintiff 1034660\311870947.V1 1 of 7 FILED: QUEENS COUNTY CLERK 10/26/2022 03:34 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/26/2022 Charles E. Gary 300 Motor Parkway – Suite 205 Hauppauge, NY 11788-5522 Counsel for Defendant, People of the State of New York & Metropolitan Transportation Authority Bernard J. Tordesillas 375 Pearl Street – 30th Floor New York, NY 10038 Counsel for Defendant, New York City Department of Finance To: (VIA FIRST CLASS MAIL) Ronfayzi Inc. 99 Washington Avenue, 6th Floor Albany, NY 12231 & 6656 Thornton Place Rego Park, NY 11374 Defendant New York City Environmental Control Board 100 Church Street, 1st Floor New York, NY 10007 Defendant New York City Transit Adjudication Bureau 130 Livingston Street Brooklyn, NY 11434 Defendant Cynthia Wright s/h/a John Doe #1 177-26 Ursina Road Saint Albans, NY 11434 Defendant Cooper Wright s/h/a John Doe #2 177-26 Ursina Road Saint Albans, NY 11434 Defendant Damion Wright s/h/a John Doe #3 177-26 Ursina Road Saint Albans, NY 11434 Defendant Chris Wright s/h/a John Doe #4 177-26 Ursina Road Saint Albans, NY 11434 Defendant Walter McDowell s/h/a John Doe #5 177-26 Ursina Road Saint Albans, NY 11434 Defendant Kanika Meade s/h/a John Doe #6 2 1034660\311870947.V1 2 of 7 FILED: QUEENS COUNTY CLERK 10/26/2022 03:34 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/26/2022 177-26 Ursina Road Saint Albans, NY 11434 Defendant Almando Izquierdo s/h/a John Doe #7 177-26 Ursina Road Saint Albans, NY 11434 Defendant 3 1034660\311870947.V1 3 of 7 FILED: QUEENS COUNTY CLERK 10/25/2022 10/26/2022 09:05 03:34 AM PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 77 78 RECEIVED NYSCEF: 10/25/2022 10/26/2022 MEMORANDUM SUPREME COURT OF THE STATE OF NEW YORK PART 36 COUNTY OF QUEENS HON. ROBERT I. CALORAS -----------------------------------------------------------------x WELLS FARGO BANK, N.A., AS TRUSTEE, FOR THE CERTIFICATEHOLDERS OF MORGAN STANLEY ABS CAPITAL I INC., TRUST 2005- WMC5, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-WMC5, Index No. 716943/17 Plaintiff, Seq. No 1 -against- FILED RONFAYZI INC.; PEOPLE OF THE STATE OF NEW YORK; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY TRANSIT ADJUDICATION 10/25/2022 BUREAU; NEW YORK CITY DEPARTMENT COUNTY CLERK OF FINANCE; JOHN DOE (Those unknown QUEENS COUNTY tenants, occupants, persons or corporations or their heirs, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises.), Defendants. Dated: October 24, 2022 ----------------------------------------------------------------x Plaintiff alleges the following in the Complaint: on or about February 23, 2005 Walter McDowell (Walter), who died on January 28, 2013, executed a note in the amount of $250,000.00 in favor of WMC Mortgage Corp., and as security for payment of the note, Walter and Merline McDowell AKA Merlene McDowell (Merline) by attorney in fact, who died on November 25, 2009, executed a mortgage on the property located at 177-26 Ursina Road, Saint Albans, New York. The mortgage was subsequently assigned to Plaintiff. At the time the note and mortgage were executed, Walter and Merline were in title to the property. On May 16, 2016, Walter McDowell III (Walter III), as the sole surviving heir of Merline and the surviving joint tenant of Merline, transferred the property to Defendant Ronfayzi Inc. (Ronfayzi), who is the current owner of the property. Walter III failed to comply with the conditions of the note and mortgage by failing to make the payment due on September 1, 2012, and all subsequent payments. In his Verified Answer, Almando Izquierdo (Izquierdo) asserted the following affirmative defenses: lack of standing; failure to comply with the requirements for the notice of default in the mortgage agreement; failure to comply with RPAPL 1304; attorney’s fees pursuant to RPL 282; and excessive interest pursuant to CPLR 5001(a). In addition, Izquierdo also asserted the following: The transfer of ownership form Merline McDowell to Merline McDowell and Walter McDowell, II as joint tenants with rights of survivorship was obtained through fraudulent means through the use of a power of attorney that was fraudulently obtained while Merline McDowell was hospitalized. Thus the subject mortgage that Walter McDowell, II obtained using this power of attorney was obtained under fraudulent means. Likewise, the conveyance of the subject property to Ronfayzi, Inc. was done through fraudulent means 4 of 7 FILED: QUEENS COUNTY CLERK 10/25/2022 10/26/2022 09:05 03:34 AM PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 77 78 RECEIVED NYSCEF: 10/25/2022 10/26/2022 because Walter McDowell, III did not have legal authority to transfer the property. In the first branch of the instant motion, Plaintiff moves for summary judgment against Defendant Izquierdo and to dismiss Izquierdo’s affirmative defenses. Plaintiff submitted Izquierdo’s deposition transcript, and an affidavit from Patrick Riquelme (Riquelme), an officer for Select Portfolio Servicing, Inc. (SPS). Annexed to Riquelme’s affidavit are the following documents: Hello letter, dated September 27, 2012; Limited Power of Attorney; note; mortgage; assignment; notices of default; 90 day notices; letter log and contact history; and proof of filing statement. Riquelme stated the following: on October 1, 2012 SPS began servicing the subject loan. The records created by the prior servicer for this loan were integrated and boarded into SPS’s systems, and are now a part of SPS’s business records. He acquired personal knowledge of this loan by personally examining the business records pertaining to this loan. The Note and Mortgage were thereafter assigned and delivered from Mortgage Electronic Registration Systems, Inc., as nominee for WMC Mortgage Corp. and assigned to Plaintiff pursuant to an assignment, dated May 24, 2012 and recorded on June 20, 2012. SPS, as custodian on behalf of Plaintiff, has been in possession of the original Note, endorsed in blank, since March 9, 2015. Notice of Default, dated December 19, 2013, was mailed via first class mail and addressed to Walter at the property. Ninety-day pre- foreclosure notices, with a list of at least five (5) housing counseling agencies (the "90-Day Notices"),were mailed to Walter on October 18, 2013 by first-class mail and certified mail, return receipt requested. According to the loan records, there is presently due and owing to Plaintiff the principal sum of $223,012.11, together with interest thereon from August 1, 2012. Plaintiff also submitted an affidavit from Cynthia May (May), an officer at SPS, and annexed thereto, among other things, the following documents: mortgage; deed; power of attorney (POA). May stated the following: Merline granted authority under the POA to Walter, Defendant Izquierdo, and Carrie McDowell, to act “SEPARATELY” pursuant to the terms of the POA. Subsequently, by deed, dated February 17, 2005 and recorded on April 15, 2006, Merline conveyed the property to Walter and herself “as Joint Tenants with Rights of Survivorship”. Walter executed the mortgage on his own behalf, as well as on behalf of Merline, pursuant to the POA that was recorded on the same day as the mortgage. After Merline died on or about November 25, 2009, Walter, who acquired an interest in the property with a right of survivorship, became the sole owner of the property. On or about January 28, 2013, Walter died. By deed, dated May 26, 2016 and recorded on June 20, 2016, Walter III "as sole surviving heir of WALTER MCDOWELL, deceased, the surviving joint tenant of MERELENE (sic) MCDOWELL aka MARLINE (sic) MCDOWELL, deceased" conveyed the property to Defendant Ronfayzi. Based upon the foregoing, Plaintiff argues that it is entitled to summary judgment and that Defendant Izquierdo’s affirmative defenses are without merit. Plaintiff argues that its predecessor in interest did not have any notice of the alleged fraudulent transfer from Merline to Walter. Furthermore, its predecessor in interest was a bona fide encumbrancer for value without notice of any alleged fraud. As such, Plaintiff argues that the mortgage is protected under RPL 266. Plaintiff further argues that even if the POA was induced by fraud or was forged, the mortgage is a valid and enforceable lien on the property because: 1) Walter held an interest in the property that he was able to encumber by virtue of the deed Merline executed conveying an interest in the property to him; 2) 5 of 7 FILED: QUEENS COUNTY CLERK 10/25/2022 10/26/2022 09:05 03:34 AM PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 77 78 RECEIVED NYSCEF: 10/25/2022 10/26/2022 Walter acquired Merline’s interest in the property upon Merlene’s death, pursuant to the deed which included a right of survivorship; and 3) upon Merline’s death, Walter’s interest in the property became subject to the Mortgage under the after-acquired title doctrine. In opposition, Defendant Izquierdo claims that he resides at the subject property. In or around 2006, Walter (Izquierdo’s Uncle) added his name to the title without Izquierdo’s knowledge. He claims that Walter forged Merline’s signature on the deed. In support thereof, he submitted an unsigned report from Patricia Zippo, a Forensic Document Examiner, which purportedly confirmed that Walter forged Merline’s signature on the deed. He also argues that this transfer was done in bad faith and/or fraudulently because his Mother (Merline) “had been very clear in her wishes that she wanted the property to pass to me upon her death”. He also argues Riquelme’s affidavit is inadmissible hearsay, and that among other things, failed to establish that Plaintiff was in possession of the note, the loan is in default, and Plaintiff has standing. In addition, Izquierdo requests that the Court exercise its equitable powers to deny the instant motion. In a residential mortgage foreclosure action, a Plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the default (See, JPMorgan Chase Bank, N.A. v Mantle, 134 AD3d 903, 904 [2d Dept. 2015]; Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [2d Dept. 2015], lv denied 26 NY3d 917 [2016]; HSBC Bank, USA v Hagerman, 130 AD3d 683, 683-684 [2d Dept. 2015]). Here, the Court finds that Plaintiff’s submissions established its prima facie entitlement to summary judgment by submitting the unpaid note, endorsed in blank, the mortgage, and evidence of the deceased Borrower’s default. The Court also finds that Plaintiff’s submissions established its prima facie entitlement to dismissal of Defendant Izquierdo’s affirmative defenses. Both Riquelme’s and May’s affidavit and the assignment annexed to their affidavit established that Plaintiff’s predecessor in interest assigned the note and mortgage to Plaintiff by an assignment, dated May 24, 2012 and recorded on June 20, 2012. The Court also finds that Plaintiff’s submissions established that its predecessor in interest was a bona fide encumbrancer for value, protected under RPL 266. RPL 266 provides that “[t]his article does not in any manner affect or impair the title of a purchaser or incumbrancer for a valuable consideration, unless it appears that he had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor”. The difference between a void deed and a voidable deed is paramount in determining whether RPL 266 is applicable (Weiss v Phillips, 157 AD3d 1 [1st Dept. 2017]). “A void real estate transaction is one where the law deems that no transfer actually occurred” (id.). Thereby, “if the deed is void, it does not pass title and cannot be enforced even if title is later acquired by a bona fide purchaser” (id.). “Similarly, a lender who takes a mortgage to a property subject to a void deed does not have anything to mortgage, so the lender's mortgage is invalid as well” (id.). “In contrast, a voidable real estate transaction is one where a transfer is deemed to have occurred, but can be revoked” (id.). Consequently, “[t]he interests of subsequent bona fide purchasers or encumbrancers for value are thus not protected under Real Property Law 266 when their title is derived from a forged deed or one that is the product of false pretenses” (id.). In contrast, a deed procured by fraudulent inducement is merely voidable (id.), “and a mortgagee which issues a mortgage to the grantee without notice of the fraud is protected in its title” (Retek v 233 Associates, Inc., 41 Misc3d 1220[a] [Supreme Court, Kings County 2013]). 6 of 7 FILED: QUEENS COUNTY CLERK 10/25/2022 10/26/2022 09:05 03:34 AM PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 77 78 RECEIVED NYSCEF: 10/25/2022 10/26/2022 Here, Plaintiff’s submissions established that pursuant to the POA, Walter was permitted to act “separately”. After the POA was issued, Merline executed a deed transferring the property to Walter and herself, as joint tenants. Consequently, Walter held title to the subject property when he executed the loan. As such, Plaintiff established that its predecessor interest was a bona fide encumbrancer for value subject to RPL 266. The Court also finds that Defendant Izquierdo’s submissions failed to raise an issue of fact regarding Plaintiff’s entitlement to summary judgment and dismissal of his affirmative defenses. Izquierdo’s claims regarding the affidavits Plaintiff submitted from Riquelme and May are without merit. The Court also finds that Izquierdo’s submissions failed to establish that the deed Merline executed, transferring the property to her and Walter, was a forgery. The only evidence Izquierdo submitted in support of this claim was a report from Patricia Zippo, a Forensic Document Examiner. Ms. Zippo’s report is unsworn and failed to specify her purported qualifications as a handwriting expert (Hagan v General Motors Corp., 194 AD2d 766 [2d Dept. 1993], lv denied 82 NY2d 658 [1993]). Consequently, Ms. Zippo’s report is inadmissible. The Court also finds that Izquierdo’s remaining claims are without merit. Accordingly, the branch of Plaintiff’s motion for summary judgment and dismissal of Defendant Izquierdo’s affirmative defenses is granted. The remaining branches of the motion are granted as unopposed. Submit order. FILED ___________________________________ ROBERT I. CALORAS, J.S.C. 10/25/2022 COUNTY CLERK QUEENS COUNTY 7 of 7