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FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023
At an IAS Term of the Supreme
Court of the State of New York held
in the County of Suffolk at the
Courthouse thereof in the
on
, 20___.
PRESENT: Hon. Susan Heckman Torres
Justice of the Supreme Court
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
ORDER GRANTING
WELLS FARGO BANK, N.A., SUCCESSOR BY PLAINTIFF'SMOTION FOR
MERGER TO WACHOVIAMORTGAGE, FSB SUMMARY JUDGMENT AND
FORMERLY KNOWNAS WORLD SAVINGS BANK, ORDER OF REFERENCE
FSB,
Index No.: 032512/2013
Plaintiff,
Property Address:
v. 74 Bay Ave
GAIL S. KOURBAGE, UNITED STATES OF
AMERICA-DEPARTMENT OF TREASURY- Mortgage Servicer Wells Fargo
INTERNAL REVENUE SERVICE, AMERICAN Home Mortgage
EXPRESS BANK, FSB, RICHARD KOURBAGE
Telephone Number 1-877-617-5274
Defendants.
SBL. No.: 033.00-01.00-004.000
UPON, the Notice of Motion for Summary Judgment and Order of Reference dated
February 23, 2023, the Affirmation of Cassie T. Doran, Esq., and the exhibits annexed thereto,
the Memorandum of Law of Cassie T. Doran, Esq., submitted in support of Plaintiffs Motion for
Summary Judgment, the Affidavit in Support of Plaintiffs Motion for Summary Judgment by
Minwuyelet Alem who is Vice President of Loan Documentation of Wells Fargo Bank, N.A.,
Plaintiff, swom to on May 3, 2022, together with the exhibits attached thereto, and the Affidavit
of Mailing of 90 Day Notice and Notice of Default by Armenia Harrell who is Vice President of
{9106254: }103648-2
Wells Fargo Bank, N.A., etc. vs. Gail S. Kourbage, et al.
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Loan Documentation of Wells Fargo Bank, N.A., Plaintiff, sworn to on January 9, 2023, together
with the exhibits attached thereto, having been heard on at the
Suffolk County Courthouse, 1 Court Street, Riverhead, NY 11901, and all prior papers filed in
this action and prior proceedings had herein; and
UPON the Notice of Motion for Summary Judgment and due proof of service of said
Notice of Motion; and
UPON reading the Summons, Complaint, Answer and all other pleadings and
proceedings in the case; and
UPON due proof having been shown that all the Defendants have been duly served, with
the Summons and Complaint in this action and required notices; and
UPON, it appearing that American Express Bank, FSB and Richard Kourbage's time to
answer the complaint has expired; and
UPON, Defendant United States of America-Department of the Treasury-Internal
Revenue Service having voluntarily appeared by its attorneys and waived service of all papers
and notice of all proceedings except notice of any amendment to the pleadings to refer to any
lien or interest of the United States not described in the pleading herefore served on the United
States, notice of any motion other paper seeking to challenge the lien or other interest of record
of the United States, notice of sale, report of sale, and notice of all proceedings to obtain surplus
moneys; and
UPON, Defendant Gail S. Kourbage, having joined issue by submitting an Answer with
Affirmative Defenses in response to Plaintiffs Summons and Complaint; and
UPON the Plaintiff showing compliance with the requirements of CPLR §3408 and a
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settlement was not reached and the case was released from the settlement conference part on
June 27, 2014; and
UPON the Court's finding that Plaintiff has complied with the requirements of RPAPL
§§1303, 1304, 1306 and 1320;
AND, after hearing Cassie T. Doran, Esq. in support of the motion and ,
Esq. in opposition thereto and upon due deliberation,
NOW ON MOTION of Woods Oviatt Gilman LLP attorneys for Plaintiff it is
ORDERED, that the Answer and AfErmative Defenses of the Defendant, Gail S.
Kourbage are dismissed; and it is further
ORDERED, that Plaintiffs Motion for Summary Judgment is granted in all respects and
as to all the facts and issues described in Plaintiff's complaint; and it is further
ORDERED, that , Esq. with an
address of , is hereby appointed
Referee in accordance with RPAPL §1321 to ascertain and compute the amount due upon the
Loan Agreement and Mortgage to be foreclosed upon which this action was brought except
attorney's fees and to examine and report whether the mortgaged premises can be sold in parcels;
and it is further
ORDERED, that the Referee make his/her computation and report with all convenient
speed; and it is further
ORDERED, that if required, said Referee take testimony pursuant to RPAPL §1321; and
it is further
ORDERED, that by accepting this appointment, the referee certifies that she/he is in
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compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36) including, but not
limited to Section 36.2(c) ('Disqualification from Appointment') and Section 36.2 (d)
('Limitations on Appointments Based on Compensation'); and it is further
ORDERED, that, pursuant to CPLR §8003(a), the statutory fee of $350.00, and in the
discretion of the court, a fee of $ , shall be paid to the Referee for the computation of the
amount due and upon the filing of his/her report and the Referee shall not request or accept
additional compensation for the computation unless it has been fixed by the court in accordance
with CPLR §8003(a); and it is further
ORDERED, that the Referee is prohibited from accepting or retaining any funds for
him/herself or of paying funds to him/herself with compliance of Part 36 of the Rules of the
Chief Administrative Judge; and it is further
ORDERED, that the Plaintiff is hereby awarded a default judgment against all defendants
who have not appeared in this action; and it is further
ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all
parties and persons entitled to notice, including the Referee appointed herein.
This constitutes the decision and order of the court.
Dated:
Justice of the Supreme Court
Ente ed:
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--------------------------------------------- x
WELLS FARGO BANK, N.A., SUCCESSOR BY MERGER
INDEX NO.: 032512/2013
TO WACHOVIA MORTGAGE, FSB FORMERLY KNOWN .
AS WORLD SAVINGS BANK, FSB, MORTGAGED PREMISES:
. 74 Bay Ave
Plaintiff, NY 11743
Huntington,
v.
GAIL S. KOURBAGE, UNITED STATES OF AMERICA- :
DEPARTMENT OF TREASURY-INTERNAL REVENUE :
SERVICE, AMERICAN EXPRESS BANK, FSB, RICHARD
KOURBAGE, .
Defendant(s).
X
___________--..----------------------------------------------------------
PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT
WOODS OVIATT GILMAN LLP
Cassie T. Doran, Esq.
500 Bausch & Lomb Place
Rochester, NY 14604
Tel: (855) 227-5072
Attorneys for Plaintiff
. .
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Plaintiff WELLS FARGO BANK, N.A., SUCCESSOR BY MERGER TO WACHOVIA
MORTGAGE, FSB FORMERLY KNOWN AS WORLD SAVINGS BANK, FSB ("Plaintiff")
submits this memorandum in support of its motion, pursuant to New York Civil Practice Law and
Rules ("CPLR") 3212, for summary judgment on its complaint filed on December 10, 2013 (the
"Complaint") against Defendant GAIL S. KOURBAGE ("Defendant"), and as to the defenses set
"Answer"
forth in Defendant's dated January 14, 2014 (the "Answer"), and for entry of a default
judgment against the non-appearing defendant(s).
PRELIlvHNARY STATEMENT
This action was commenced to foreclose the Mortgage executed by Gail S. Kourbage to in
the original principal amount of $740,000.00, and recorded in the Office of the Clerk ofthe County
of Suffolk on June 19, 2006 in Liber M00021319 at page 848.
In March 2009, Defendant defaulted on her mortgage loan payments and, despite notices
of default and opportunities to cure, has failed to make the contractually required mortgage
payments since that date.
Plaintiff filed this action on December 10, 2013 to recover $792,865.24 in unpaid principal,
plus interest and fees, and other recoverable amounts, due and owing to it on the mortgage loan.
Defendant, in an attempt to further delay foreclosure and to continue to own the property without
making any loan payments served an Answer asserting seventeen (17) baseless defenses against
Plaintiff.
A prior Order granting summary judgment was entered on October 26, 2018. Said Order
was subsequently vacated by the Decision and Order of the Second Appellate Department entered
November 25, 2020.
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Summary judgment in favor of Plaintiff is appropriate because Defendant fails to assert
any viable claim or defense, and Plaintiff has established a prima facie entitlement to judgment of
foreclosure as a matter of law. Accordingly, Plaintiff's Motion for Summary Judgment should be
granted in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
The Factual and Procedural background of the instant action is set forth in the Affinnation
of Cassie T. Doran, Esq. ("Plaintiffs Affirmation") and is incorporated herein.
ARGUMENT
L PLAINTIFF HAS ESTABLISHED ITS PRIMA FACIE ENTITLEMENT TO
SUMMARY JUDGMENT
Summary judgment is appropriate when there is no issue of material fact and the movant
is entitled to judgment as a matter of law. See CPLR 3212; Zuckerman v. City ofN.Y, 49 N.Y.2d
557, 562, 427 N.Y.S.2d 595, 598 (1980). The initial burden falls upon the movant to show that no
genuine issue of material fact exists. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508
N.Y.S.2d 923, 925 (1986).
On a motion for summary judgment to foreclose on a mortgage, a plaintiff establishes a
prima facie case by producing the mortgage, the unpaid note and evidence of default. Nationstar
Mtge., LLC v. Medley, 168 A.D.3d 959, 960, 93 N.Y.S.3d 69 (2d Dep't 2019); Deutsche Bank
Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 (2d Dep't 2017).
Here, Plaintiff has established its prima facie entitlement to summary judgment by
submitting the Affidavits of the Plaintiff with annexed Note, Mortgage, and Payment History, as
evidence of Defendant's failure to make the contractually required mortgage loan payments to
Plaintiff, the holder of the Note and Mortgage. See Plaintiffs Affidavit, Exhibit H and exhibits
annexed thereto.
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Such a showing shifts the burden to the Defendant to present admissible evidence showing
the existence of a triable fact. See Fed. Home Loan Mortg. Corp. v. Karastathis, 237 A.D.2d 558,
655 N.Y.S.2d 631 (2d Dep't 1997). However, conclusory allegations unsupported by competent
evidence are insufficient to defeat summary judgment. Alvarez, 68 N.Y.2d at 324-25, 508
N.Y.S.2d at 925.
As a whole, the Answer is comprised of unsupported and conclusory allegations, which
should be dismissed, as a matter of law, for failing to meet the minimum pleading requirements.
See CPLR 3013. Plaintiff submits that each of the Defendants affirmative defenses is conclusory
and has been presented with insufficient specificity to raise a triable issue of fact. Banco Popular
N. Am. v. Victory Taxi Mgmt., 1 N.Y.3d 381, 382 (2004); Ehrlich v. American Moninger
Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259 (1970). However, should the Court find any the
Defendants assertions sufficient to warrant a determination of these issues, as set forth in more
detail below, Defendants alleged defenses remain without merit.
By failing to address or generally denying all of the allegations in the Complaint, and by
asserting defenses lacking any basis in law or fact, Defendant has raised no triable issue of fact
and Plaintiff's Motion for Summary Judgment should be granted in its entirety.
II. PLAINTIFF'S AFFIDAVITS ARE SUFFICIENT AND PROPER EVIDENCE TO
SUPPORT AN AWARD OF SUMMARY JUDGMENT.
Plaintiff has submitted two Affidavits sworn to by representatives of the Plaintiff that
establishes Plaintiffs entitlement to summary judgment.
Plaintiffs Affidavit in Support of Motion for Summary Judgment ("Plaintiffs Affidavit")
annexed to Plaintiff s Affirmation as Exhibit H, and Plaintiffs Affidavit of Mailing of 90 Day
Notice and Notice of Default ("Affidavit of Mailing"), annexed to Plaintiffs Affirmation as Exhibit
I, were sworn to representatives Wells Fargo Bank N.A. ("Wells Fargo"). Wells Fargo handled all
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aspects of customer service related to the purpose of servicing the subject mortgage loans, which
includes collecting and posting payments, maintaining the escrow account, mailing of notices and
other correspondence, arid maintaining relevant records for the loan.
Here, the affiants in Plaintiff s Affidavit and Plaintiff s Affidavit of Mailing, attest that they
have personal knowledge of Wells Fargo's record keeping practices and procedures, that it was the
regular course of Wells Fargo's business to maintain these records, and that the records were made at
or near the time of the transaction. See Exhibits H and I,
The factual allegations set forth in the Affidavits meet the foundational requirements for
admissibility under the business records exception and therefore the Affidavits and annexed
records are admissible. See CPLR 4518(a); see also People v. Kennedy, 68 N.Y.2d 569, 579-S80,
503 N.E.2d 501, 510 N.Y.S.2d 8S3 (1986).
As such, said Affidavits are sufficient and proper evidence to support PlaintifFs claims in
granting its Motion for Summary Judgment.
III. DEFENDANT'S ANSWER IS WITHOUT MERIT AND FAILS TO RAISE AN
ISSUE OF FACT WHICH WOULD PRECLUDE SUMMARY JUDGMENT
A. PLAINTIFF'S COMPLAINT ACCURATELY STATES A CAUSE OF
ACTION.
As a Second Affirmative Defense, the Defendant alleges that Plaintiff's Complaint fails to
state a cause of action upon which relief may be granted. This argument is without merit.
First, this affirmative defense is improper in that it was raised in Defendant's answer and a
"defense that a complaint does not state a cause of action cannot be interposed in an answer, but
$3211(a)(7)."
must be raised by motion pursuant to CPLR Citibank N.A. v. JPalker, 12 A.D.3d.
480, 481, 787 N.Y.S.Zd 48, 49 (2d Dept. 2004) citing Bentivegna v. Meenan Oil Co., 126 A.D.2d
506., 508, 510 N.Y.S.2d 626 (1987).
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Notwithstanding, the Complaint filed by Plaintiff is sufficient on its face. Pursuant to
CPLR §3013, a pleading is sufficient if it gives "the court and parties notice of the transactions,
occurrences, or series of transactions or occurrences, intended to be proved and the material
defense."
elements of each cause of action or See CPLR §3013.
Plaintiff's Complaint alleges that Plaintiff the existence of the unpaid note, mortgage, and
that there has been a default under the terms of the same. See Plaintiff s Affirmation, Exhibit A.
Furthermore, copies of the Note and Mortgage were attached to the Complaint. See Id.
Plaintiff has therefore satisfied the pleading requirements of the CPLR with respect to the
sufficiency of its Complaint and has provided an adequate basis in law for the relief requested. See
Nationstar Mtge., LLC v. Medley, 168 A.D.3d 959, 960, 93 N.Y.S.3d 69 (2d Dep't 2019); Deutsche
Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 (2d Dep't 2017). As
such, Defendant's Second Affirmative Defense and must fail.
B. PLAINTIFF HAS NO OBLIGATION TO MITIGATE DAMAGES.
As a Third Affirmative Defense, the Defendant alleges Plaintiff failed to mitigate damages.
This is not a defense to the foreclosure.
Plaintiff commenced the instant foreclosure action pursuant to a contractual right and has
no affirmative duty to mitigate damages, work out a payment plan or other arrangement. See Logue
v. Young, 94 A.D.2d 827, 463 N.Y.S.2d 120 (3rd Dep't 1983); Cohn v. Middle Road Riverhead
Development Corp., 162 A.D.2d 578, 556 N.Y.S.2d 764 (2d Dep't 1990). This defense must fail
because "[m]itigation of damages is not an affirmative defense to an action to foreclose a
mortgage."
HSBC Bank USA v. Picarelli, No. 2763/2008, 23 Misc. 3d ll35(A), 2009 WL 1585773,
at *3 (Sup. Ct. Queens Cty. 2009), see also Crest/Good Mfg. Co. v. Baumann, 160 A.D.2d 831,
832, 554 N.Y.S.2d 264, 265 (2d Dep't 1990).
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FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023 At an IAS Term of the Supreme Court of the State of New York held in the County of Suffolk at the Courthouse thereof in the on , 20___. PRESENT: Hon. Susan Heckman Torres Justice of the Supreme Court SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ORDER GRANTING WELLS FARGO BANK, N.A., SUCCESSOR BY PLAINTIFF'SMOTION FOR MERGER TO WACHOVIAMORTGAGE, FSB SUMMARY JUDGMENT AND FORMERLY KNOWNAS WORLD SAVINGS BANK, ORDER OF REFERENCE FSB, Index No.: 032512/2013 Plaintiff, Property Address: v. 74 Bay Ave GAIL S. KOURBAGE, UNITED STATES OF AMERICA-DEPARTMENT OF TREASURY- Mortgage Servicer Wells Fargo INTERNAL REVENUE SERVICE, AMERICAN Home Mortgage EXPRESS BANK, FSB, RICHARD KOURBAGE Telephone Number 1-877-617-5274 Defendants. SBL. No.: 033.00-01.00-004.000 UPON, the Notice of Motion for Summary Judgment and Order of Reference dated February 23, 2023, the Affirmation of Cassie T. Doran, Esq., and the exhibits annexed thereto, the Memorandum of Law of Cassie T. Doran, Esq., submitted in support of Plaintiffs Motion for Summary Judgment, the Affidavit in Support of Plaintiffs Motion for Summary Judgment by Minwuyelet Alem who is Vice President of Loan Documentation of Wells Fargo Bank, N.A., Plaintiff, swom to on May 3, 2022, together with the exhibits attached thereto, and the Affidavit of Mailing of 90 Day Notice and Notice of Default by Armenia Harrell who is Vice President of {9106254: }103648-2 Wells Fargo Bank, N.A., etc. vs. Gail S. Kourbage, et al. Suffolk County Supreme Court , Index #: 032512/2013 1 of 27 FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023 Loan Documentation of Wells Fargo Bank, N.A., Plaintiff, sworn to on January 9, 2023, together with the exhibits attached thereto, having been heard on at the Suffolk County Courthouse, 1 Court Street, Riverhead, NY 11901, and all prior papers filed in this action and prior proceedings had herein; and UPON the Notice of Motion for Summary Judgment and due proof of service of said Notice of Motion; and UPON reading the Summons, Complaint, Answer and all other pleadings and proceedings in the case; and UPON due proof having been shown that all the Defendants have been duly served, with the Summons and Complaint in this action and required notices; and UPON, it appearing that American Express Bank, FSB and Richard Kourbage's time to answer the complaint has expired; and UPON, Defendant United States of America-Department of the Treasury-Internal Revenue Service having voluntarily appeared by its attorneys and waived service of all papers and notice of all proceedings except notice of any amendment to the pleadings to refer to any lien or interest of the United States not described in the pleading herefore served on the United States, notice of any motion other paper seeking to challenge the lien or other interest of record of the United States, notice of sale, report of sale, and notice of all proceedings to obtain surplus moneys; and UPON, Defendant Gail S. Kourbage, having joined issue by submitting an Answer with Affirmative Defenses in response to Plaintiffs Summons and Complaint; and UPON the Plaintiff showing compliance with the requirements of CPLR §3408 and a {9106254: }103648-2 Wells Fargo Bank, N.A., etc. vs. Gail S. Kourbage, et al. Suffolk County Supmme Court , Index #: 032512/2013 2 of 27 FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023 settlement was not reached and the case was released from the settlement conference part on June 27, 2014; and UPON the Court's finding that Plaintiff has complied with the requirements of RPAPL §§1303, 1304, 1306 and 1320; AND, after hearing Cassie T. Doran, Esq. in support of the motion and , Esq. in opposition thereto and upon due deliberation, NOW ON MOTION of Woods Oviatt Gilman LLP attorneys for Plaintiff it is ORDERED, that the Answer and AfErmative Defenses of the Defendant, Gail S. Kourbage are dismissed; and it is further ORDERED, that Plaintiffs Motion for Summary Judgment is granted in all respects and as to all the facts and issues described in Plaintiff's complaint; and it is further ORDERED, that , Esq. with an address of , is hereby appointed Referee in accordance with RPAPL §1321 to ascertain and compute the amount due upon the Loan Agreement and Mortgage to be foreclosed upon which this action was brought except attorney's fees and to examine and report whether the mortgaged premises can be sold in parcels; and it is further ORDERED, that the Referee make his/her computation and report with all convenient speed; and it is further ORDERED, that if required, said Referee take testimony pursuant to RPAPL §1321; and it is further ORDERED, that by accepting this appointment, the referee certifies that she/he is in {9106254; }103648-2 Wells Fargo Bank, N.A., etc. vs. Gail S. Kourbage, et al. Suffolk County Supreme Court , Index #: 032512/2013 3 of 27 FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023 compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36) including, but not limited to Section 36.2(c) ('Disqualification from Appointment') and Section 36.2 (d) ('Limitations on Appointments Based on Compensation'); and it is further ORDERED, that, pursuant to CPLR §8003(a), the statutory fee of $350.00, and in the discretion of the court, a fee of $ , shall be paid to the Referee for the computation of the amount due and upon the filing of his/her report and the Referee shall not request or accept additional compensation for the computation unless it has been fixed by the court in accordance with CPLR §8003(a); and it is further ORDERED, that the Referee is prohibited from accepting or retaining any funds for him/herself or of paying funds to him/herself with compliance of Part 36 of the Rules of the Chief Administrative Judge; and it is further ORDERED, that the Plaintiff is hereby awarded a default judgment against all defendants who have not appeared in this action; and it is further ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all parties and persons entitled to notice, including the Referee appointed herein. This constitutes the decision and order of the court. Dated: Justice of the Supreme Court Ente ed: {9106254: }103648-2 Wells Fargo Bank, N.A., etc. vs. Gail S. Kourbage, et al. Suffolk County Supreme Court , Index #: 032512/2013 4 of 27 FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------- x WELLS FARGO BANK, N.A., SUCCESSOR BY MERGER INDEX NO.: 032512/2013 TO WACHOVIA MORTGAGE, FSB FORMERLY KNOWN . AS WORLD SAVINGS BANK, FSB, MORTGAGED PREMISES: . 74 Bay Ave Plaintiff, NY 11743 Huntington, v. GAIL S. KOURBAGE, UNITED STATES OF AMERICA- : DEPARTMENT OF TREASURY-INTERNAL REVENUE : SERVICE, AMERICAN EXPRESS BANK, FSB, RICHARD KOURBAGE, . Defendant(s). X ___________--..---------------------------------------------------------- PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT WOODS OVIATT GILMAN LLP Cassie T. Doran, Esq. 500 Bausch & Lomb Place Rochester, NY 14604 Tel: (855) 227-5072 Attorneys for Plaintiff . . {9106295: } 5 of 27 FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023 Plaintiff WELLS FARGO BANK, N.A., SUCCESSOR BY MERGER TO WACHOVIA MORTGAGE, FSB FORMERLY KNOWN AS WORLD SAVINGS BANK, FSB ("Plaintiff") submits this memorandum in support of its motion, pursuant to New York Civil Practice Law and Rules ("CPLR") 3212, for summary judgment on its complaint filed on December 10, 2013 (the "Complaint") against Defendant GAIL S. KOURBAGE ("Defendant"), and as to the defenses set "Answer" forth in Defendant's dated January 14, 2014 (the "Answer"), and for entry of a default judgment against the non-appearing defendant(s). PRELIlvHNARY STATEMENT This action was commenced to foreclose the Mortgage executed by Gail S. Kourbage to in the original principal amount of $740,000.00, and recorded in the Office of the Clerk ofthe County of Suffolk on June 19, 2006 in Liber M00021319 at page 848. In March 2009, Defendant defaulted on her mortgage loan payments and, despite notices of default and opportunities to cure, has failed to make the contractually required mortgage payments since that date. Plaintiff filed this action on December 10, 2013 to recover $792,865.24 in unpaid principal, plus interest and fees, and other recoverable amounts, due and owing to it on the mortgage loan. Defendant, in an attempt to further delay foreclosure and to continue to own the property without making any loan payments served an Answer asserting seventeen (17) baseless defenses against Plaintiff. A prior Order granting summary judgment was entered on October 26, 2018. Said Order was subsequently vacated by the Decision and Order of the Second Appellate Department entered November 25, 2020. {9106295: }1 6 of 27 FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023 Summary judgment in favor of Plaintiff is appropriate because Defendant fails to assert any viable claim or defense, and Plaintiff has established a prima facie entitlement to judgment of foreclosure as a matter of law. Accordingly, Plaintiff's Motion for Summary Judgment should be granted in its entirety. FACTUAL AND PROCEDURAL BACKGROUND The Factual and Procedural background of the instant action is set forth in the Affinnation of Cassie T. Doran, Esq. ("Plaintiffs Affirmation") and is incorporated herein. ARGUMENT L PLAINTIFF HAS ESTABLISHED ITS PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT Summary judgment is appropriate when there is no issue of material fact and the movant is entitled to judgment as a matter of law. See CPLR 3212; Zuckerman v. City ofN.Y, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 598 (1980). The initial burden falls upon the movant to show that no genuine issue of material fact exists. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 (1986). On a motion for summary judgment to foreclose on a mortgage, a plaintiff establishes a prima facie case by producing the mortgage, the unpaid note and evidence of default. Nationstar Mtge., LLC v. Medley, 168 A.D.3d 959, 960, 93 N.Y.S.3d 69 (2d Dep't 2019); Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 (2d Dep't 2017). Here, Plaintiff has established its prima facie entitlement to summary judgment by submitting the Affidavits of the Plaintiff with annexed Note, Mortgage, and Payment History, as evidence of Defendant's failure to make the contractually required mortgage loan payments to Plaintiff, the holder of the Note and Mortgage. See Plaintiffs Affidavit, Exhibit H and exhibits annexed thereto. {9106295: }2 7 of 27 FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023 Such a showing shifts the burden to the Defendant to present admissible evidence showing the existence of a triable fact. See Fed. Home Loan Mortg. Corp. v. Karastathis, 237 A.D.2d 558, 655 N.Y.S.2d 631 (2d Dep't 1997). However, conclusory allegations unsupported by competent evidence are insufficient to defeat summary judgment. Alvarez, 68 N.Y.2d at 324-25, 508 N.Y.S.2d at 925. As a whole, the Answer is comprised of unsupported and conclusory allegations, which should be dismissed, as a matter of law, for failing to meet the minimum pleading requirements. See CPLR 3013. Plaintiff submits that each of the Defendants affirmative defenses is conclusory and has been presented with insufficient specificity to raise a triable issue of fact. Banco Popular N. Am. v. Victory Taxi Mgmt., 1 N.Y.3d 381, 382 (2004); Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259 (1970). However, should the Court find any the Defendants assertions sufficient to warrant a determination of these issues, as set forth in more detail below, Defendants alleged defenses remain without merit. By failing to address or generally denying all of the allegations in the Complaint, and by asserting defenses lacking any basis in law or fact, Defendant has raised no triable issue of fact and Plaintiff's Motion for Summary Judgment should be granted in its entirety. II. PLAINTIFF'S AFFIDAVITS ARE SUFFICIENT AND PROPER EVIDENCE TO SUPPORT AN AWARD OF SUMMARY JUDGMENT. Plaintiff has submitted two Affidavits sworn to by representatives of the Plaintiff that establishes Plaintiffs entitlement to summary judgment. Plaintiffs Affidavit in Support of Motion for Summary Judgment ("Plaintiffs Affidavit") annexed to Plaintiff s Affirmation as Exhibit H, and Plaintiffs Affidavit of Mailing of 90 Day Notice and Notice of Default ("Affidavit of Mailing"), annexed to Plaintiffs Affirmation as Exhibit I, were sworn to representatives Wells Fargo Bank N.A. ("Wells Fargo"). Wells Fargo handled all {9106295: }3 8 of 27 FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023 aspects of customer service related to the purpose of servicing the subject mortgage loans, which includes collecting and posting payments, maintaining the escrow account, mailing of notices and other correspondence, arid maintaining relevant records for the loan. Here, the affiants in Plaintiff s Affidavit and Plaintiff s Affidavit of Mailing, attest that they have personal knowledge of Wells Fargo's record keeping practices and procedures, that it was the regular course of Wells Fargo's business to maintain these records, and that the records were made at or near the time of the transaction. See Exhibits H and I, The factual allegations set forth in the Affidavits meet the foundational requirements for admissibility under the business records exception and therefore the Affidavits and annexed records are admissible. See CPLR 4518(a); see also People v. Kennedy, 68 N.Y.2d 569, 579-S80, 503 N.E.2d 501, 510 N.Y.S.2d 8S3 (1986). As such, said Affidavits are sufficient and proper evidence to support PlaintifFs claims in granting its Motion for Summary Judgment. III. DEFENDANT'S ANSWER IS WITHOUT MERIT AND FAILS TO RAISE AN ISSUE OF FACT WHICH WOULD PRECLUDE SUMMARY JUDGMENT A. PLAINTIFF'S COMPLAINT ACCURATELY STATES A CAUSE OF ACTION. As a Second Affirmative Defense, the Defendant alleges that Plaintiff's Complaint fails to state a cause of action upon which relief may be granted. This argument is without merit. First, this affirmative defense is improper in that it was raised in Defendant's answer and a "defense that a complaint does not state a cause of action cannot be interposed in an answer, but $3211(a)(7)." must be raised by motion pursuant to CPLR Citibank N.A. v. JPalker, 12 A.D.3d. 480, 481, 787 N.Y.S.Zd 48, 49 (2d Dept. 2004) citing Bentivegna v. Meenan Oil Co., 126 A.D.2d 506., 508, 510 N.Y.S.2d 626 (1987). l9106295: j4 9 of 27 FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM INDEX NO. 032512/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/28/2023 Notwithstanding, the Complaint filed by Plaintiff is sufficient on its face. Pursuant to CPLR §3013, a pleading is sufficient if it gives "the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material defense." elements of each cause of action or See CPLR §3013. Plaintiff's Complaint alleges that Plaintiff the existence of the unpaid note, mortgage, and that there has been a default under the terms of the same. See Plaintiff s Affirmation, Exhibit A. Furthermore, copies of the Note and Mortgage were attached to the Complaint. See Id. Plaintiff has therefore satisfied the pleading requirements of the CPLR with respect to the sufficiency of its Complaint and has provided an adequate basis in law for the relief requested. See Nationstar Mtge., LLC v. Medley, 168 A.D.3d 959, 960, 93 N.Y.S.3d 69 (2d Dep't 2019); Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 (2d Dep't 2017). As such, Defendant's Second Affirmative Defense and must fail. B. PLAINTIFF HAS NO OBLIGATION TO MITIGATE DAMAGES. As a Third Affirmative Defense, the Defendant alleges Plaintiff failed to mitigate damages. This is not a defense to the foreclosure. Plaintiff commenced the instant foreclosure action pursuant to a contractual right and has no affirmative duty to mitigate damages, work out a payment plan or other arrangement. See Logue v. Young, 94 A.D.2d 827, 463 N.Y.S.2d 120 (3rd Dep't 1983); Cohn v. Middle Road Riverhead Development Corp., 162 A.D.2d 578, 556 N.Y.S.2d 764 (2d Dep't 1990). This defense must fail because "[m]itigation of damages is not an affirmative defense to an action to foreclose a mortgage." HSBC Bank USA v. Picarelli, No. 2763/2008, 23 Misc. 3d ll35(A), 2009 WL 1585773, at *3 (Sup. Ct. Queens Cty. 2009), see also Crest/Good Mfg. Co. v. Baumann, 160 A.D.2d 831, 832, 554 N.Y.S.2d 264, 265 (2d Dep't 1990). {9106295: }5 10 of 27 FILED: SUFFOLK COUNTY CLERK 02/28/2023 10:58 AM