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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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WELLS FARGO USA HOLDINGS, INC. NOTICE OF ENTRY
Plaintiff,
vs
INDEX #: 850218/2016
CORAZON TAMARGO-RIVERA, WELLS
FARGO BANK, N.A. AS SUCCESSOR BY MORTGAGED PREMISES:
MERGER TO WELLS FARGO FINANCIAL 245 EAST 50TH STREET 4A
BANK, UNITED STATES OF AMERICA NEW YORK, NY 10022
ACTING THROUGH THE IRS, BOARD OF
MANAGERS OF THE ILE ST. LOUIS BL #: 1324 - 1006
CONDOMINIUM, BOARD OF MANAGERS
OF THE PORT LIBERTE II CONDOMINIUM
ASSOCIATION INC., NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD,
CITY REGISTER OF THE CITY OF NEW
YORK, NEW YORK COUNTY, BONE
TIERRA REAL ESTATE
Defendant(s).
______________________ _----------------------------------------X
PLEASE TAKE NOTICE, that the within is a true copy of the Decision & Order entered in the Office
of the Clerk of the County of New York on January 9, 2019.
DATED: February 7, 2019
Williamsville, New York
By:
Richard P Fay, Esq.
GROSS POLOWY, LLC
Attorneys for Plaintiff
1775 Wehrle Drive, Suite 100
Williamsville, NY 14221
Telephone: (716)204-1700
Facsimile: (716)204-1702
(Facsimile not for service)
TO:
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WELLS FARGO USA HOLDINGS, INC.
vs.
Corazon Tamargo-Rivera, et al.
INDEX NO. : 850218/2016
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Name and Address of Party Served Mode of Service
Noor A. Saab, Esq. O Regular mail via USPS
Attorney for Defendant Corazon Tamargo-
O Certified mail/RR
Rivera E-mail
177-08 Jamiaca Avenue Notice of Electronic Filing (NYSCEF)
Jamaica, NY 11432
O United Parcel Service
O FedEX
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: ( ( PART
. _ Justice
Index Number : 850218/2016 INDEX NO
WELLS FARGO FINANCIAL CREDIT
MOTION DATE
vs
TAMARGO-RIVERA, CORAZON MOTION SEQ. NO.
Sequence Number : 001
- SUMMARY JUDGMENT
The f:::owing papers,numbêrad 1 to_ , were read on thismotion to/for
Noticeof Motion/Order to Show Cause - Affidavits- Exhibits |No(s).
Answering
-
Affidavits Exhibits No(s).
Affidavits.. No(s).
Replying
Upon the foregoing papers, It is
ordered that thismotion is
decided in accordance with the attached written decision.
=! 5
Dated:
.HO G RG J. SILVER
1. CHECK ONE: ASE DISPOSED NON-FINAbDISPASITION
2. CHECK AS APPROPRIATE: .........---- _MOTION IS: GRANTED 0 DENIED GRANTED IN PART D OTHER
3. CHECK IF APPROPRIATE: SETTLE ORDER
................................................ D SUBMIT ORDER
DO NOT POST O FIDUCIARY APPOINTMENT ¤ REFERENCE
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: Part 10
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WELLS FARGO FINANCIAL CREDIT Motion Seq. N9. 001
SERVICES NEW YORK, INC.,
DECISION & ORDER
Plaintiff,
-against-
CORAZON TAMARGO-RIVERA, WELLS
FARGO BANK, N.A. AS SUCCESSOR BY
MERGER TO WELLS FARGO FINANCIAL
BANK, UNITED STATES OF AMERICA
ACTING THROUGH THE IRS, BOARD OF
MANAGERS OF THE ILE ST. LOUIS
CONDOMINIUM, BOARD OF MANAGERS
OF THE PORT LIBERTE II CONDOMINIUM
ASSOCIATION INC., NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD,
CITY REGISTER OF THE CITY OF NEW YORK,
NEW YORK COUNTY
JOHN DOE (being fictitious,the names
unknown to Plaintiff intended to be tenants,
occupants, persons or corporations having or
claiming an interest in or lien upon the property
described in the complaint or their heirs at law,
distributees, executors, administrators, trustees,
guardians, assignees, creditors or successors.)
Defendants
.... .. .. .. X
GEORGE J. SILVER, J.S.C.:
This action is brought to foreclose on a mortgage held by plaintiff WELLS FARGO
FINANCIAL CREDIT SERVICES NEW YORK, INC., ("plaintiff") and executed by defendant
CORAZON 50*
TAMAGRO-RIVERA("defendant") on apremises located at 245 East Street, Apt.
4A, New York, NY 10027, recorded at CRFN 2005000014011 in the Office of the City Register of
the City of New York, New York County on January 7, 2005. This action was filed on November
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14, 2016 in the New York County Clerk's Office, this being the County where the mortgaged
property is located. Plaintiff filed and served the summons, complaint and notice of pendency in
the form prescribed by allapplicable statutes, including RPAPL § 1320.
Following defendant's answer, foreclosure settlement conferences were held on February
22, 2017, March 22, 2017, May 10, 2017, May 24, 2017, June 14, 2017 and July 26, 2017. At the
July 26, 2017 conference, itwas determined that no settlement or other resolutions to the action had
occurred and the matter was released. At that time, plaintiff was allowed to proceed with its
foreclosure action.
BACKGROUND
Following de,fêñdañt's acquisition of the subject property, plaintiff extended a loan to
defendant. To secure that loan, defendant executed and delivered a mortgage dated August 22,
2003, in the amount of $374,618.30 against the subject property. On or about October 25, 2004,
plaintiff made an additional loan to defendant. To secure that loan, defeñdañt executed and
delivered a mortgage dated October 25, 2004, in the amount of $114,274.31 against the subject
property. Those two mortgages were consolidated by a Consolidation, Extension and Modification
Agreement executed by defendant dated October 25, 2004 to form a single lien against the premiscs
in the amount of $458,366.10. The terms of this loan are evidenced by a promissory note, loan
s*ntement, and the HUD Settlement Statement signed by defendant on October 25, 2004, and
annexed to plaintiff's moving papers. The mortgage dated October 25, 2004 and the
Consolidation, Extension and Modification Agreement dated October 25, 2004, were intended to
be recorded in the regular course in the office of the City Register of the City of New York, New
York County, so as to afford plaintiff, and its successors in interest, a complctc mortgage lien
in the amount of $458,366.10 against the subject preperty. Following the of that
closing
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transaction, the mortgage dated October 25, 2004 and the Consolidation, Extension and
Modification Agreemcñt dated October 25, 2004, were entrusted to the settlement or titleagent who
handled the closing, and/or was delivered to the County Clerk or Recorder to be so recorded. For
unknown reasons, the original mortgage dated October 25, 2004 and the Consolidation, Extension
and Modification Agreement dated October 25, 2004, were not recorded in the Office of the City
Register of the City of New York, New York County, or Recorder. Plaintiff believes that the
mortgage dated October 25, 2004 and the Consolidation, Extension and Modification Agreement
dated October 25, 2004 have been lost and/or inadvertently destroyed.
Because the mortgage dated October 25, 2004 and the Consolidation, Extension and
Modification Agreement dated October 25, 2004 cannot be located and presumably have been lost
or inadvertently destroyed, the mortgage evidencing plaintiff's security interest in the amount of
$458,366.10 is not secured as a firstlien against the subject property.
However, any claim which any of the defendants, or any person claiming through or under
them, may assert against 245 East 50th Street 4A, New York, New York 10022 is invalid,
inferior, subject and subordinate to the interest of plaintiff in and to that real property.
In spite of the it is undisputed that plaintiff and dafandant have a
foregoing, fiduciary
relationship. Indeed, the settlement documents and note show that a mutually beneficial promise
was made on account of that relationship, namely thatthe property would be transferred in the event
that defendant failed to uphold her promise to re-pay the loan.
If the lien in the mortgage dated October 25, 2004 and the Consolidation, Extension and
Modification Agreement dated October 25, 2004 are not enforced, plaintiff argues that plaintiff will
be irreparably injured, and the defêñdañts will be unjustly enriched. To that end, plaintiff requests
that thiscourt issue an order declaring that it holds a valid and equitable mortgage on the property
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in the principal amount of $458,366.10, plus interest and other charges, in order to secure the
aforementioned promissory note eviandag plaintiff's mortgage loan, superior to the claims and
interests of all defendants herein.
In opposition, defendant contends that plaintiff is not entitled to judgment in its favor
because plaintiff has not submitted all documents reflecting that itis the owner of the note and
mortgage in this action. Originally, defendant highlights that Country Wide Home Loans, Inc.,
was the owner of the note and mortgage. Defendant contends that plaintiff's motion does not
marshal the purported assignments that would have let to its acquisition of the note and mortgage
from County Wide Home Loans, Inc. Since defendant argues that plaintiff does not even retain
physical possession of the note and mortgage, defendant conteñds that plaintiff has not presented,
and cannot present, any admissible evidence that ithas standing to receive judgment in itsfavor.
In moving for summary judgment in a mortgage foreclosure action, plaintiff establishes a
prima facie right to foreclose by producing the mortgage, the assignment, ifany, the unpaid note
and evideñce of default (see CitiFinancial Co. (DE) v. McKinney, 27 AD3d 224 [1st Dept. 2006] ;
LPP Mortgage, Ltd v. Card Corp., 17 AD3d 103 [1st Dept], lv app den, 6 NY3d 702 [2005]); Hypo
Holdings, Inc v. Chalasani, 280 AD2d 386 [1st Dept], lv app den 96 NY2d 717 [2001]). Once
plaintiff satisfies that burden, itis iñcumbent on the party opposing foreclosure to come forward
with evidence sufficient to raise a triable issue of fact as to a bona fide defense such as waiver,
estoppel, bad faith, fraud, or oppressive or unconscionable conduct on thepart of the plaintiff (see
Nassau Trust Co. v. Montrose Concrete Products Corp., 56 NY2d 175, reargmt den 57 NY2d 674
[1982]; CitiFinancial Co. (DE) v. McKinney, supra; Mahopac National Bank v. Baisley, 244 AD2d
466 [2nd Dept 1997], lv app dism 91 NY2d 1003 [1998]).
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Here, plaintiffadmittedly does not have physical possession of the subject mortgage. Indeed,
the original mortgage dated October 25, 2004 and the Consolidation, Extension and Modification
Agreement dated October 25, 2004, were not recorded in the Office of the City Register of the City
of New York, New York County, or Recorder. Moreover, plaintiff believes that the mortgage dated
October 25, 2004 and the Consolidation, Extension and Modification Agreement dated October 25,
2004 have been lost and/or inadvertently destroyed. Nevertheless, ifone who is deemed to be "[t]he
note"
holder of the then one is also deemed to be "the owner of the underlying mortgage loan with
foreclose"
standing to (Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 362 [2015]). Indeed, "[t]he
note and not the mortgage, is the dispositive instrument that conveys standing to foreclose under
law"
New York (Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737, 738 [3d Dept 2015]).
The mortgage passes incident to the note (JPMorgan Chase Bank, N A. v Weinberger, 142 AD3d
643, 644-45 [2d Dept 2016] citing Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361, supra).
In thiscase, plaintiff was the holder of the note when itco-md thisaction, and therefore
"'holder'
has standing to pursue the instant relief sought. The term means the person in possession
of a negotiable tangible document of titleifthe goods are deliverable either to bearer or to the order
possession" "bearer"
of the person in (UCC § 1-201[b] [21]). The term means "a person in
possession of a negotiable instrument, document of title, or certificated security that is payable to
blank" "person"
bearer or indorsed in (UCC § 1-201 [b] [5]). The term means "an individual,
corporation, business trust, estate, trust, partnership, limited liabilitycompany, association, joint
venture, government, governmental subdivision, agency, or instrumentality, public corporation, or
entity"
any other legal or commercial (UCC § 1-201 [b] [27]). In accordance with the definition of
those terms, when itfiled the lawsuit, plaintiff was in possession of the original note. "[W]here the
note is affixed to the complaint, itis unnecessary to give factual details of the in order to
delivery
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establish that possession was obtained prior to a particular date (Deutsche Bank Natl. Trust Co. v
Logan, 146 AD3d 861 [2nd Dept 2017]). In the instant action, plaintiff's anachment of the certified
note to the complaint filed at the commencement of this action, together with plaintiff's affidavit in
support of the instant motion, provide requisite proof of plaintiff's possession of the note at the
time of the commencement of this action.
In addition, plaintiff is the original payee on the note, and the record is devoid of any
evidence of a transfer from origination of the loan until commencement of this action. Defendant
has failed to proffer credible evidence suggesting otherwise. After the origination of the loan and
defendant's default, plaintiff commenced this action on November 14, 2016. At the time, the
complaint bore plaintiff's name and included original loan documents bearing plaintiff's name
as lender. As the original payee and holder of the note at the time itcommenced this action, plaintiff
has standing to pursue the relief requested herein (Aurora Loan Servs. v. Taylor, 25 NY3d at 362,
supra). Indeed, when a plaintiff demonstrates that upon commencement of the action itpossessed
a note, indorsed in blank, by way of physical delivery, New York has consistently found a plaintiff
to have sufficient interest in the enforcement of the debt to support standing in a foreclosure action
(see, e.g.,Aurora Loan Servs. v. Taylor, 25 NY3d at 361-62, supra). Accordingly, this court finds
that plaintiff has sufficiently established itsprima facie entitlement to judgment as a matter of law
by uncontested proof of the note, and defendant's default. Nowhere in defendant's opposition does
defendant deny executing the note and mortgage or defendant's default thereunder. Moreover, to
rebut plaintiff's prima facie showing, defendant has failedto come forward with evidence sufficient
to raise a triable issue of fact as to a bona fide defense such as waiver, estoppel, bad faith, fraud, or
oppressive or unconscionable conduct on the partof the plaintiff (see Nassau Trust Co. v. Montrose
Concrete Products Corp., 56 NY2d 175, supra).
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The court has considered defendant's remaining arguments in opposition to plaintiff's
motion, and finds them unpersuasive. As such, based on the foregoing, plaintiff's motion is granted,
and plaintiff is entitled to summary judgment, amendment of the caption, dismissal of the answer
and the appointment of a Referee to compute. Considering this conclusion, defendant is not entitled
to dismissal on account of plaintiff's alleged want of standing.
Accordingly, upon the affidavit in support of summary judgment submitted on behalf of
plaintiff setting forth the facts which entitle plaintiff to the relief prayed for and plaintiff's
memorandum of law in support of summary judgment, and upon proof of compliance with all
statutory conditions precedcat to a foreclosure action, and it appearing to the satisfaction of this
court from said documents that this action was brought to foreclose a mortgage on real property
located in the County of New York, State of New York, that the entire unpaid balance secured
thereby is due and owing, itis hereby
ORDERED, that defendants Wells Fargo Bank, N.A. as successor by merger to Wells
Fargo Financial Bank, Board of Managers of the Ile St.Louis Condominium, Board of Managers
of the Port Liberte IICondominium Association Inc., New York City Environmental Control Board,
City Register of the City of New York, New York County and Bone Tierra Real Estate have not
appeared or answered in this matter and are deemed in default; and itis further
ORDERED that summary judgment is granted in favor of plaintiff; that the affirmative
defenses asserted in defendant's answer are dismissed; and itis further
ORDERED, that this action be and the same hereby is referred to Robert Finkelstein, Esq.,
with an address of 99 Hudson Street Floor 5, New York, NY 10013 (212) 964-8700 who is hereby
appointed Referee to ascertain and compute the amount due except for attorney's fees upon the
bond/note and mortgage being foreclosed in this action, and to determine whether the mortgaged
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premises can be sold in parcels and the Referee to report to the Court with all convenient speed;
and itis further;
ORDERED, that, ifrequired, the Referee take testimony pursuant to RPAPL §1321, and
itis further
ORDERED, that by accepting this appointment the Referee certifies that he/ is in
compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not
limited to 36.2 (c) ("Disqualifications from appointment"), and 36.2 (d) ("Limitations on
appointments based upon compensation"); and, if the Referee is disqualified from receiving an
appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the
Appointing Judge, and itis further
ORDERED, that pursuant to CPLR § 8003(a)(the statutory fee of $50.00)(in the
discretion of the Court, a fee of $250.00), shall be paid to the Referee for the computation stage
and upon the filing of his report; and itis further
ORDERED, that the Referee is prehibited from accepting or retaining any funds for
him/herself or paying funds to him/herself without compliance with Part 36 of the Rules of the
Chief Administrative Judge; and itis further
ORDERED, that the name of Bone Tierra Real Estate be substituted in the caption of this
Doe"
action in place of "John and that the caption be amended to reflect this substitution; and itis
further
ORDERED, that the caption be amended to reflect the plaintiff as Wells Fargo USA
Holdings, Inc.; and itis further
ORDERED, that Plaintiff is declared holder of a valid and equitable mortgage on the
property in the priüeipal amount of $458,366.10, plus interest and other charges; and itis further
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ORDERED, that,upon presentation of a certified copy of the Order of this Court, and upon
payment of the customary and usual fees, the Office of the City Register of the City of New York,
New York County be directed to record a certified copy of the Order of this Court in the land records
evidencing such lien; and itis further
ORDERED, that all defendants, and every person or entity claiming under them by title
accruing after the filing of the judgment roll, or of the Notice of Pendency of this action, as
prescribed by law, be and hereby are forever barred and precluded from asserting such claim, the
invalidity of which is established in this action, to an estate or interest in the subject premises, of
any kind or nature whatsoever; and itis further
ORDERED, that the caption shall read as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
WELLS FARGO USA HOLDINGS, INC. INDEX Ne: 850218/2016
Plaintiff,
vs. MORTGAGES PREMISES
50™
245 EAST STREET 4A
CORAZON TAMARGO-RIVERA, WELLS NEW YORK, NY 10022
FARGO BANK, N.A. AS SUCCESSOR BY
MERGER TO WELLS FARGO
FINANCIAL BANK, UNITED STATES OF BL#: 1324-1006
AMERICA ACTING THROUGH THE IRS
BOARD OF MANAGERS OF THE ILE ST.
LOUIS CONDOMINIUM, BOARD OF
MANAGERS OF THE PORT LIBERTE II
CONDUMINIUM ASSOCIATION INC.,
NEW YORK CITY ENVIRONMENTAL
CONTROL BOARD, CITY REGISTER OF
THE CITY OF NEW YORK, NEW YORK
COUNTY, BONE TIERRA REAL
ESTATE,
Defendants
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; and itis further
ORDERED, that a copy of this Order shall be served upon any party entitled thereto
; and itis further
ORDERED, that plaintiff's counsel will serve a conformed copy of this Order upon the
Trial Support Office and County Clerk for amendment of court records
; and itis further
ORDERED that the parties are directed to appear for a status conference on
I o f, in Part 10 located at 111 Centre Street, Room 1227, at
9:30 AM to report the status of compliance with this order.
The foregoing constitutes the decision and order of the court.
DATE:
ENTER:
GEORGE J. SILVER
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WELLS FARGO USA HOLDINGS, INC.
Plaintiff, AFFIDAVIT OF SERVICE BY
MAIL
vs
Preview
FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------X WELLS FARGO USA HOLDINGS, INC. NOTICE OF ENTRY Plaintiff, vs INDEX #: 850218/2016 CORAZON TAMARGO-RIVERA, WELLS FARGO BANK, N.A. AS SUCCESSOR BY MORTGAGED PREMISES: MERGER TO WELLS FARGO FINANCIAL 245 EAST 50TH STREET 4A BANK, UNITED STATES OF AMERICA NEW YORK, NY 10022 ACTING THROUGH THE IRS, BOARD OF MANAGERS OF THE ILE ST. LOUIS BL #: 1324 - 1006 CONDOMINIUM, BOARD OF MANAGERS OF THE PORT LIBERTE II CONDOMINIUM ASSOCIATION INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, CITY REGISTER OF THE CITY OF NEW YORK, NEW YORK COUNTY, BONE TIERRA REAL ESTATE Defendant(s). ______________________ _----------------------------------------X PLEASE TAKE NOTICE, that the within is a true copy of the Decision & Order entered in the Office of the Clerk of the County of New York on January 9, 2019. DATED: February 7, 2019 Williamsville, New York By: Richard P Fay, Esq. GROSS POLOWY, LLC Attorneys for Plaintiff 1775 Wehrle Drive, Suite 100 Williamsville, NY 14221 Telephone: (716)204-1700 Facsimile: (716)204-1702 (Facsimile not for service) TO: 1 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2019 WELLS FARGO USA HOLDINGS, INC. vs. Corazon Tamargo-Rivera, et al. INDEX NO. : 850218/2016 *********************************************************************************** Name and Address of Party Served Mode of Service Noor A. Saab, Esq. O Regular mail via USPS Attorney for Defendant Corazon Tamargo- O Certified mail/RR Rivera E-mail 177-08 Jamiaca Avenue Notice of Electronic Filing (NYSCEF) Jamaica, NY 11432 O United Parcel Service O FedEX 2 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF DOC. NO. 44 RECEIVEDINDEX NYSCEF: NO. 02/13/2019 850218/2016 (FILED: NEW YORK COUÑTY CLERK 01/09/2019 09: 27 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/09/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: ( ( PART . _ Justice Index Number : 850218/2016 INDEX NO WELLS FARGO FINANCIAL CREDIT MOTION DATE vs TAMARGO-RIVERA, CORAZON MOTION SEQ. NO. Sequence Number : 001 - SUMMARY JUDGMENT The f:::owing papers,numbêrad 1 to_ , were read on thismotion to/for Noticeof Motion/Order to Show Cause - Affidavits- Exhibits |No(s). Answering - Affidavits Exhibits No(s). Affidavits.. No(s). Replying Upon the foregoing papers, It is ordered that thismotion is decided in accordance with the attached written decision. =! 5 Dated: .HO G RG J. SILVER 1. CHECK ONE: ASE DISPOSED NON-FINAbDISPASITION 2. CHECK AS APPROPRIATE: .........---- _MOTION IS: GRANTED 0 DENIED GRANTED IN PART D OTHER 3. CHECK IF APPROPRIATE: SETTLE ORDER ................................................ D SUBMIT ORDER DO NOT POST O FIDUCIARY APPOINTMENT ¤ REFERENCE 1 of 11 3 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF DOC. |FILED: NO. NEW 44YORK COUNTY CLERK 01 /09 /2019 09 : 27 RECEIVED INDEXNYSCEF: NO. 02/13/2019 850218/2016 AM_j NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/09/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 10 ------------------------------------------ -------------X Index N9 850218/2016 WELLS FARGO FINANCIAL CREDIT Motion Seq. N9. 001 SERVICES NEW YORK, INC., DECISION & ORDER Plaintiff, -against- CORAZON TAMARGO-RIVERA, WELLS FARGO BANK, N.A. AS SUCCESSOR BY MERGER TO WELLS FARGO FINANCIAL BANK, UNITED STATES OF AMERICA ACTING THROUGH THE IRS, BOARD OF MANAGERS OF THE ILE ST. LOUIS CONDOMINIUM, BOARD OF MANAGERS OF THE PORT LIBERTE II CONDOMINIUM ASSOCIATION INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, CITY REGISTER OF THE CITY OF NEW YORK, NEW YORK COUNTY JOHN DOE (being fictitious,the names unknown to Plaintiff intended to be tenants, occupants, persons or corporations having or claiming an interest in or lien upon the property described in the complaint or their heirs at law, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors.) Defendants .... .. .. .. X GEORGE J. SILVER, J.S.C.: This action is brought to foreclose on a mortgage held by plaintiff WELLS FARGO FINANCIAL CREDIT SERVICES NEW YORK, INC., ("plaintiff") and executed by defendant CORAZON 50* TAMAGRO-RIVERA("defendant") on apremises located at 245 East Street, Apt. 4A, New York, NY 10027, recorded at CRFN 2005000014011 in the Office of the City Register of the City of New York, New York County on January 7, 2005. This action was filed on November 1 2 of 11 4 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF (FILED DOC.: NO. NEW 44 YORK COUNTY CLERK RECEIVED INDEXNYSCEF: NO. 02/13/2019 850218/2016 01/0 9 /2 019 0 9 : 27 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/09/2019 14, 2016 in the New York County Clerk's Office, this being the County where the mortgaged property is located. Plaintiff filed and served the summons, complaint and notice of pendency in the form prescribed by allapplicable statutes, including RPAPL § 1320. Following defendant's answer, foreclosure settlement conferences were held on February 22, 2017, March 22, 2017, May 10, 2017, May 24, 2017, June 14, 2017 and July 26, 2017. At the July 26, 2017 conference, itwas determined that no settlement or other resolutions to the action had occurred and the matter was released. At that time, plaintiff was allowed to proceed with its foreclosure action. BACKGROUND Following de,fêñdañt's acquisition of the subject property, plaintiff extended a loan to defendant. To secure that loan, defendant executed and delivered a mortgage dated August 22, 2003, in the amount of $374,618.30 against the subject property. On or about October 25, 2004, plaintiff made an additional loan to defendant. To secure that loan, defeñdañt executed and delivered a mortgage dated October 25, 2004, in the amount of $114,274.31 against the subject property. Those two mortgages were consolidated by a Consolidation, Extension and Modification Agreement executed by defendant dated October 25, 2004 to form a single lien against the premiscs in the amount of $458,366.10. The terms of this loan are evidenced by a promissory note, loan s*ntement, and the HUD Settlement Statement signed by defendant on October 25, 2004, and annexed to plaintiff's moving papers. The mortgage dated October 25, 2004 and the Consolidation, Extension and Modification Agreement dated October 25, 2004, were intended to be recorded in the regular course in the office of the City Register of the City of New York, New York County, so as to afford plaintiff, and its successors in interest, a complctc mortgage lien in the amount of $458,366.10 against the subject preperty. Following the of that closing 2 3 of 11 5 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF DOC.: ILED NO. NEW44 YORK COUNTY CLERK RECEIVED INDEXNYSCEF: NO. 02/13/2019 850218/2016 |F 01/ 0 9 / 2 0 19 0 9 : 2 7 AM , NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/09/2019 transaction, the mortgage dated October 25, 2004 and the Consolidation, Extension and Modification Agreemcñt dated October 25, 2004, were entrusted to the settlement or titleagent who handled the closing, and/or was delivered to the County Clerk or Recorder to be so recorded. For unknown reasons, the original mortgage dated October 25, 2004 and the Consolidation, Extension and Modification Agreement dated October 25, 2004, were not recorded in the Office of the City Register of the City of New York, New York County, or Recorder. Plaintiff believes that the mortgage dated October 25, 2004 and the Consolidation, Extension and Modification Agreement dated October 25, 2004 have been lost and/or inadvertently destroyed. Because the mortgage dated October 25, 2004 and the Consolidation, Extension and Modification Agreement dated October 25, 2004 cannot be located and presumably have been lost or inadvertently destroyed, the mortgage evidencing plaintiff's security interest in the amount of $458,366.10 is not secured as a firstlien against the subject property. However, any claim which any of the defendants, or any person claiming through or under them, may assert against 245 East 50th Street 4A, New York, New York 10022 is invalid, inferior, subject and subordinate to the interest of plaintiff in and to that real property. In spite of the it is undisputed that plaintiff and dafandant have a foregoing, fiduciary relationship. Indeed, the settlement documents and note show that a mutually beneficial promise was made on account of that relationship, namely thatthe property would be transferred in the event that defendant failed to uphold her promise to re-pay the loan. If the lien in the mortgage dated October 25, 2004 and the Consolidation, Extension and Modification Agreement dated October 25, 2004 are not enforced, plaintiff argues that plaintiff will be irreparably injured, and the defêñdañts will be unjustly enriched. To that end, plaintiff requests that thiscourt issue an order declaring that it holds a valid and equitable mortgage on the property 3 4 of 11 6 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF (FILED DOC.: NO. NEW 44YORK COUNTY CLERK 01/ 0 9 / 2 019 0 9 : 2 7 RECEIVEDINDEX NYSCEF: NO. 02/13/2019 850218/2016 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/09/2019 in the principal amount of $458,366.10, plus interest and other charges, in order to secure the aforementioned promissory note eviandag plaintiff's mortgage loan, superior to the claims and interests of all defendants herein. In opposition, defendant contends that plaintiff is not entitled to judgment in its favor because plaintiff has not submitted all documents reflecting that itis the owner of the note and mortgage in this action. Originally, defendant highlights that Country Wide Home Loans, Inc., was the owner of the note and mortgage. Defendant contends that plaintiff's motion does not marshal the purported assignments that would have let to its acquisition of the note and mortgage from County Wide Home Loans, Inc. Since defendant argues that plaintiff does not even retain physical possession of the note and mortgage, defendant conteñds that plaintiff has not presented, and cannot present, any admissible evidence that ithas standing to receive judgment in itsfavor. In moving for summary judgment in a mortgage foreclosure action, plaintiff establishes a prima facie right to foreclose by producing the mortgage, the assignment, ifany, the unpaid note and evideñce of default (see CitiFinancial Co. (DE) v. McKinney, 27 AD3d 224 [1st Dept. 2006] ; LPP Mortgage, Ltd v. Card Corp., 17 AD3d 103 [1st Dept], lv app den, 6 NY3d 702 [2005]); Hypo Holdings, Inc v. Chalasani, 280 AD2d 386 [1st Dept], lv app den 96 NY2d 717 [2001]). Once plaintiff satisfies that burden, itis iñcumbent on the party opposing foreclosure to come forward with evidence sufficient to raise a triable issue of fact as to a bona fide defense such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on thepart of the plaintiff (see Nassau Trust Co. v. Montrose Concrete Products Corp., 56 NY2d 175, reargmt den 57 NY2d 674 [1982]; CitiFinancial Co. (DE) v. McKinney, supra; Mahopac National Bank v. Baisley, 244 AD2d 466 [2nd Dept 1997], lv app dism 91 NY2d 1003 [1998]). 4 5 of 11 7 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF ILEDDOC.: NO. NEW 44 YORK COUNTY RECEIVEDINDEXNYSCEF: NO. 850218/2016 02/13/2019 [F CLERK 0 170 9 / 2 019 0 9 : 2 7 AM) NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/09/2019 Here, plaintiffadmittedly does not have physical possession of the subject mortgage. Indeed, the original mortgage dated October 25, 2004 and the Consolidation, Extension and Modification Agreement dated October 25, 2004, were not recorded in the Office of the City Register of the City of New York, New York County, or Recorder. Moreover, plaintiff believes that the mortgage dated October 25, 2004 and the Consolidation, Extension and Modification Agreement dated October 25, 2004 have been lost and/or inadvertently destroyed. Nevertheless, ifone who is deemed to be "[t]he note" holder of the then one is also deemed to be "the owner of the underlying mortgage loan with foreclose" standing to (Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 362 [2015]). Indeed, "[t]he note and not the mortgage, is the dispositive instrument that conveys standing to foreclose under law" New York (Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737, 738 [3d Dept 2015]). The mortgage passes incident to the note (JPMorgan Chase Bank, N A. v Weinberger, 142 AD3d 643, 644-45 [2d Dept 2016] citing Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361, supra). In thiscase, plaintiff was the holder of the note when itco-md thisaction, and therefore "'holder' has standing to pursue the instant relief sought. The term means the person in possession of a negotiable tangible document of titleifthe goods are deliverable either to bearer or to the order possession" "bearer" of the person in (UCC § 1-201[b] [21]). The term means "a person in possession of a negotiable instrument, document of title, or certificated security that is payable to blank" "person" bearer or indorsed in (UCC § 1-201 [b] [5]). The term means "an individual, corporation, business trust, estate, trust, partnership, limited liabilitycompany, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or entity" any other legal or commercial (UCC § 1-201 [b] [27]). In accordance with the definition of those terms, when itfiled the lawsuit, plaintiff was in possession of the original note. "[W]here the note is affixed to the complaint, itis unnecessary to give factual details of the in order to delivery 5 6 of 11 8 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF FILEDDOC.: NO. NEW 44 YORK COUNTY CLERK RECEIVED INDEXNYSCEF: NO. 02/13/2019 850218/2016 01/ 0 9 /2 019 0 9 : 27 Ali NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/09/2019 establish that possession was obtained prior to a particular date (Deutsche Bank Natl. Trust Co. v Logan, 146 AD3d 861 [2nd Dept 2017]). In the instant action, plaintiff's anachment of the certified note to the complaint filed at the commencement of this action, together with plaintiff's affidavit in support of the instant motion, provide requisite proof of plaintiff's possession of the note at the time of the commencement of this action. In addition, plaintiff is the original payee on the note, and the record is devoid of any evidence of a transfer from origination of the loan until commencement of this action. Defendant has failed to proffer credible evidence suggesting otherwise. After the origination of the loan and defendant's default, plaintiff commenced this action on November 14, 2016. At the time, the complaint bore plaintiff's name and included original loan documents bearing plaintiff's name as lender. As the original payee and holder of the note at the time itcommenced this action, plaintiff has standing to pursue the relief requested herein (Aurora Loan Servs. v. Taylor, 25 NY3d at 362, supra). Indeed, when a plaintiff demonstrates that upon commencement of the action itpossessed a note, indorsed in blank, by way of physical delivery, New York has consistently found a plaintiff to have sufficient interest in the enforcement of the debt to support standing in a foreclosure action (see, e.g.,Aurora Loan Servs. v. Taylor, 25 NY3d at 361-62, supra). Accordingly, this court finds that plaintiff has sufficiently established itsprima facie entitlement to judgment as a matter of law by uncontested proof of the note, and defendant's default. Nowhere in defendant's opposition does defendant deny executing the note and mortgage or defendant's default thereunder. Moreover, to rebut plaintiff's prima facie showing, defendant has failedto come forward with evidence sufficient to raise a triable issue of fact as to a bona fide defense such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the partof the plaintiff (see Nassau Trust Co. v. Montrose Concrete Products Corp., 56 NY2d 175, supra). 6 7 of 11 9 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF DOC. NO. 44 RECEIVED INDEXNYSCEF: NO. 02/13/2019 850218/2016 |FILED : NEW YORK COUNTY CLERK 01/0 9 72 019 O9 : 2 7 AM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/09/2019 The court has considered defendant's remaining arguments in opposition to plaintiff's motion, and finds them unpersuasive. As such, based on the foregoing, plaintiff's motion is granted, and plaintiff is entitled to summary judgment, amendment of the caption, dismissal of the answer and the appointment of a Referee to compute. Considering this conclusion, defendant is not entitled to dismissal on account of plaintiff's alleged want of standing. Accordingly, upon the affidavit in support of summary judgment submitted on behalf of plaintiff setting forth the facts which entitle plaintiff to the relief prayed for and plaintiff's memorandum of law in support of summary judgment, and upon proof of compliance with all statutory conditions precedcat to a foreclosure action, and it appearing to the satisfaction of this court from said documents that this action was brought to foreclose a mortgage on real property located in the County of New York, State of New York, that the entire unpaid balance secured thereby is due and owing, itis hereby ORDERED, that defendants Wells Fargo Bank, N.A. as successor by merger to Wells Fargo Financial Bank, Board of Managers of the Ile St.Louis Condominium, Board of Managers of the Port Liberte IICondominium Association Inc., New York City Environmental Control Board, City Register of the City of New York, New York County and Bone Tierra Real Estate have not appeared or answered in this matter and are deemed in default; and itis further ORDERED that summary judgment is granted in favor of plaintiff; that the affirmative defenses asserted in defendant's answer are dismissed; and itis further ORDERED, that this action be and the same hereby is referred to Robert Finkelstein, Esq., with an address of 99 Hudson Street Floor 5, New York, NY 10013 (212) 964-8700 who is hereby appointed Referee to ascertain and compute the amount due except for attorney's fees upon the bond/note and mortgage being foreclosed in this action, and to determine whether the mortgaged 7 8 of 11 10 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF F I DOC.: LED NO. 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NO. 43 RECEIVED NYSCEF: 01/09/2019 premises can be sold in parcels and the Referee to report to the Court with all convenient speed; and itis further; ORDERED, that, ifrequired, the Referee take testimony pursuant to RPAPL §1321, and itis further ORDERED, that by accepting this appointment the Referee certifies that he/ is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to 36.2 (c) ("Disqualifications from appointment"), and 36.2 (d) ("Limitations on appointments based upon compensation"); and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge, and itis further ORDERED, that pursuant to CPLR § 8003(a)(the statutory fee of $50.00)(in the discretion of the Court, a fee of $250.00), shall be paid to the Referee for the computation stage and upon the filing of his report; and itis further ORDERED, that the Referee is prehibited from accepting or retaining any funds for him/herself or paying funds to him/herself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and itis further ORDERED, that the name of Bone Tierra Real Estate be substituted in the caption of this Doe" action in place of "John and that the caption be amended to reflect this substitution; and itis further ORDERED, that the caption be amended to reflect the plaintiff as Wells Fargo USA Holdings, Inc.; and itis further ORDERED, that Plaintiff is declared holder of a valid and equitable mortgage on the property in the priüeipal amount of $458,366.10, plus interest and other charges; and itis further 8 9 of 11 11 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 5ED NYSCEF DOC. : NO. NEW 44 YORK COUNTY CLERK 01/ 0 9 / 2 019 O9 :2 7 AM) RECEIVEDINDEX NYSCEF: NO. 02/13/2019 850218/2016 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/09/2019 ORDERED, that,upon presentation of a certified copy of the Order of this Court, and upon payment of the customary and usual fees, the Office of the City Register of the City of New York, New York County be directed to record a certified copy of the Order of this Court in the land records evidencing such lien; and itis further ORDERED, that all defendants, and every person or entity claiming under them by title accruing after the filing of the judgment roll, or of the Notice of Pendency of this action, as prescribed by law, be and hereby are forever barred and precluded from asserting such claim, the invalidity of which is established in this action, to an estate or interest in the subject premises, of any kind or nature whatsoever; and itis further ORDERED, that the caption shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK WELLS FARGO USA HOLDINGS, INC. INDEX Ne: 850218/2016 Plaintiff, vs. MORTGAGES PREMISES 50™ 245 EAST STREET 4A CORAZON TAMARGO-RIVERA, WELLS NEW YORK, NY 10022 FARGO BANK, N.A. AS SUCCESSOR BY MERGER TO WELLS FARGO FINANCIAL BANK, UNITED STATES OF BL#: 1324-1006 AMERICA ACTING THROUGH THE IRS BOARD OF MANAGERS OF THE ILE ST. LOUIS CONDOMINIUM, BOARD OF MANAGERS OF THE PORT LIBERTE II CONDUMINIUM ASSOCIATION INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, CITY REGISTER OF THE CITY OF NEW YORK, NEW YORK COUNTY, BONE TIERRA REAL ESTATE, Defendants 9 10 of 11 12 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF DOC. NO. 44 RECEIVEDINDEXNYSCEF: NO. 02/13/2019 850218/2016 F ILED : NEW YORK COUNTY CLERK 01/ 0 9 / 2 019 0 9 : 2 7 AM| NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/09/2019 ; and itis further ORDERED, that a copy of this Order shall be served upon any party entitled thereto ; and itis further ORDERED, that plaintiff's counsel will serve a conformed copy of this Order upon the Trial Support Office and County Clerk for amendment of court records ; and itis further ORDERED that the parties are directed to appear for a status conference on I o f, in Part 10 located at 111 Centre Street, Room 1227, at 9:30 AM to report the status of compliance with this order. The foregoing constitutes the decision and order of the court. DATE: ENTER: GEORGE J. SILVER 10 11 of 11 13 of 15 FILED: NEW YORK COUNTY CLERK 02/13/2019 12:15 PM INDEX NO. 850218/2016 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------X WELLS FARGO USA HOLDINGS, INC. Plaintiff, AFFIDAVIT OF SERVICE BY MAIL vs