Preview
FILED: SULLIVAN COUNTY CLERK 02/11/2020 INDEX NO. E2017-927
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/02/2021
STATE OF NEW YORK
SUPREME COURT SULLIVAN COUNTY
THE BANK OF NEW YORK MELLON, F/K/A THE
BANK OF NEW YORK AS SUCCESSOR TO
JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR
ASSET BACKED FUNDING CORPORATION,
ASSET-BACKED SERIES 2005-
CERTIFICATES,
HE1,
Plaintiff,
Decision & Order
-against Index No.: 0927-2017
MONIQUE DEFOUR JONES, JUSERENE, LLC,
#1" #12,"
"JOHN DOE through "JOHN DOE the last
twelve names being fictitious and unknown to plaintiff,
the persons or parties intended being the tenants,
occupants, persons or corporations, if any, having or
claiming an interest in or lien upon the Subject Property,
described in the Complaint,
Defendants.
Supreme Court, Sullivan County
Motion Return Date: November 20, 2019
RJI No.: 52-40361-18
Present: Julian D. Schreibman, JSC
Appearances:
Greenberg Traurig, LLP
Attorneys for Plaintiff
200 Park Avenue
New York, New York 10166
By: Leah N. Jacob, Esq.
Schreibman, J.:
Plaintiff commenced this action on May 30, 2017 to foreclose the mortgage it holds on the
real property commonly known as 112 Blackberry Lake Road, Callicoon, New York ("subject
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property"). The Defendant-Mortgagor Monique Defour Jones ("Defour Jones") and Juserene,
LLC ("Juserene"), the current owner of the property (collectively, "Defendants") interposed a joint
answer. Plaintiff now moves for an order awarding it summary judgmeñt against the answering
defendants, appointing a referee and amending the caption to remove the fictitiously named
defeñdañts. Defendants have not submitted any opposition. Plaintiff's motion is granted, in part,
as discussed herein.
As with any motion for summan y judgment, the Plaintiff, as movant, carries the initial
burden of establishing its causes of action sufficient to warrant judgment in its favor as a matter of
law. (Zuckerman v City of New York, 49 NY2d 557 at 562 [1980]). The evidence must be in
admissible form and must be sufficient to demonstrate the absence of any material issues of fact.
(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Generally, this burden is met when the
default[.]"
plaintiff tenders the "mortgage, unpaid note and evidence of [Defendañts'] (Bank of
[3rd
N.Y. Mellon v Cronin, 151 AD3d 1504 at 1505 Dept. 2017]). The affidavit of Benjamin
Verdooren, a Senior Loan Analyst with an affiliate of Plaintiff's servicer, satisfactorily establishes
the making of the underlying note and mortgage by Defour Jones as well as her default thereüñder.
[3rd
(U.S. Bank Trust, N.A. v for Volt Asset Holdings NPL3, 156 AD3d 1255 Dept. 2017]).
Because the answer in this case challenges its standing, Plaintiff must also demonstrate that
it was the "holder or assigñee of the mortgage and underlying note at the time the action was
comrñcñced." [3rd
(Bank of N.Y. Mellon v Cronin, 151 AD3d 1504 at 1505 Dept. 2017]). The
Verdooren affidavit establishes that the original note was endorsed in blank and that Plaintiff,
through its servicing agent, has been in continuous possession of the note since September 2, 2014.
Additionally, where, as here, Plaintiff's compliance with RPAPL §1304 is raised, the plaintiff must
also tender evidence sufficient to establish, prima facie, that the allegation is true. (Bank of New
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[2nd
York Mellon v Zavolunov, 157 AD3d 754, Dept. 2018]). Plaintiff's submissions, including
the Verdooren affidavit, copies of the notices, a copy of the signed return receipt and an affidavit
of mailing are more than sufficient to demonstrate Plaintiff's compliance with RPAPL §l304.
Plaintiff has thus made a prima facie showing of entitlement to summary judgment as against
Defour Jones, who, in failing to oppose the motion, has failed to show the existence of a genuine
issue of material fact. (CPLR §3212[ [b]; Zuckerman v City of New York, 49 NY2d 557, 562
[1980]). Accordingly, Plaintiff is entitled to an order awarding it summary judgment against
Defour Jones. Plaintiff is also entitled to an Order amending the caption to remove fictitious
#1"
Defendants "John Doe through "John Doe #12".
Plaintiff has failed to establish its entitlement to summary judgment as against Juserene.
Per the allegations in the complaint, Juscreñê is the current owner of the premises Juserene, is
not, however, a signatory to the underlying note or mortgage, and Plaintiff's moving papers do not
address, let alone demonstrate through admissible evidence, that Juserene's ownership interest is
subordinate to or otherwise subject to Plaintiff's mortgage lien. As such, Plaintiff has failed to
make a prima facie showing of its entitlement to summary judgment upon its complaint as against
Juserene and that branch of its motion is denied without prejudice.
The branch of Plaintiff's motion for an order appointing a referee is denied without
prejudice as it would be inappropriate to take further proceedings while uncertainty may exist as
to whether Juserene's interest in the premises are subject to foreclosure. It is hereby
ORDERED that Plaintiff's motion for an order amending the caption is granted. The
caption in this action is hereby amended and shall read as follows:
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SULLIVAN
THE BANK OF NEW YORK MELLON, F/K/A THE
BANK OF NEW YORK AS SUCCESSOR TO
JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR
ASSET BACKED FUNDING CORPORATION,
ASSET-BACKED SERIES 2005-
CERTIFICATES,
HE1,
Index No. 0927-2017
Plaintiff,
-against
MONIQUE DEFOUR JONES, JUSERENE, LLC,
Defendants.
and it is further
ORDERED that Plaintiff's motion for an order awarding it summary judgment upon its
complaint as against Defendant Monique Defour Jones is granted; and it is further
ORDERED that the branches of Plaintiff's motion for an order awarding it suñmary
judgment upon its complaint as against Defendant Juserene, LLC and for the appointment of a
referee to ascertain and compute are denied without prejudice to a subsequent, properly supported
application; and it is further
ORDERED that Plaintiff shall submit its subsequent application for summary judgment as
agaiñst Defendant Juserene, LLC and/or for the appointment of a referee on or before April 15,
2020; and it is further
ORDERED that if Plaintiff does not move for summary judgment as against Defendant
Jusereñê, LLC, the parties shall appear for a conference on May 6, 2020 at 10:00 a.m.
This shall constitute the Decision and Order of the Court. The original Decision and Order
and all other papers are being delivered to the Supreme Court Clerk for transmission to the Sullivan
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County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing
under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding
notice of entry.
SO ORDERED.
Dated: 5 , 2020
February
NTER,
J IAN D. SCHREIBMAN, JSC
Papers considered: Notice of Motion for Summary Judgment, Default Judgment and Order of
Reference and Affirmation in Support by Leah N. Jacob, Esq. dated September 30, 2019, with
attached Exhibits; and Plaintiff's Memorandum of Law in Support by Leah N. Jacob, Esq. dated
September 30, 2019.
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FILED: SULLIVAN COUNTY CLERK 02/11/2020 INDEX NO. E2017-927 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/02/2021 STATE OF NEW YORK SUPREME COURT SULLIVAN COUNTY THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR ASSET BACKED FUNDING CORPORATION, ASSET-BACKED SERIES 2005- CERTIFICATES, HE1, Plaintiff, Decision & Order -against Index No.: 0927-2017 MONIQUE DEFOUR JONES, JUSERENE, LLC, #1" #12," "JOHN DOE through "JOHN DOE the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the Subject Property, described in the Complaint, Defendants. Supreme Court, Sullivan County Motion Return Date: November 20, 2019 RJI No.: 52-40361-18 Present: Julian D. Schreibman, JSC Appearances: Greenberg Traurig, LLP Attorneys for Plaintiff 200 Park Avenue New York, New York 10166 By: Leah N. Jacob, Esq. Schreibman, J.: Plaintiff commenced this action on May 30, 2017 to foreclose the mortgage it holds on the real property commonly known as 112 Blackberry Lake Road, Callicoon, New York ("subject 1 FILED IN SULLIVAN COUNTY CLERKS OFFICE 1 of 5 2/11/2020 FILED: SULLIVAN COUNTY CLERK 02/11/2020 INDEX NO. E2017-927 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/02/2021 property"). The Defendant-Mortgagor Monique Defour Jones ("Defour Jones") and Juserene, LLC ("Juserene"), the current owner of the property (collectively, "Defendants") interposed a joint answer. Plaintiff now moves for an order awarding it summary judgmeñt against the answering defendants, appointing a referee and amending the caption to remove the fictitiously named defeñdañts. Defendants have not submitted any opposition. Plaintiff's motion is granted, in part, as discussed herein. As with any motion for summan y judgment, the Plaintiff, as movant, carries the initial burden of establishing its causes of action sufficient to warrant judgment in its favor as a matter of law. (Zuckerman v City of New York, 49 NY2d 557 at 562 [1980]). The evidence must be in admissible form and must be sufficient to demonstrate the absence of any material issues of fact. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Generally, this burden is met when the default[.]" plaintiff tenders the "mortgage, unpaid note and evidence of [Defendañts'] (Bank of [3rd N.Y. Mellon v Cronin, 151 AD3d 1504 at 1505 Dept. 2017]). The affidavit of Benjamin Verdooren, a Senior Loan Analyst with an affiliate of Plaintiff's servicer, satisfactorily establishes the making of the underlying note and mortgage by Defour Jones as well as her default thereüñder. [3rd (U.S. Bank Trust, N.A. v for Volt Asset Holdings NPL3, 156 AD3d 1255 Dept. 2017]). Because the answer in this case challenges its standing, Plaintiff must also demonstrate that it was the "holder or assigñee of the mortgage and underlying note at the time the action was comrñcñced." [3rd (Bank of N.Y. Mellon v Cronin, 151 AD3d 1504 at 1505 Dept. 2017]). The Verdooren affidavit establishes that the original note was endorsed in blank and that Plaintiff, through its servicing agent, has been in continuous possession of the note since September 2, 2014. Additionally, where, as here, Plaintiff's compliance with RPAPL §1304 is raised, the plaintiff must also tender evidence sufficient to establish, prima facie, that the allegation is true. (Bank of New 2 2 of 5 FILED: SULLIVAN COUNTY CLERK 02/11/2020 INDEX NO. E2017-927 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/02/2021 [2nd York Mellon v Zavolunov, 157 AD3d 754, Dept. 2018]). Plaintiff's submissions, including the Verdooren affidavit, copies of the notices, a copy of the signed return receipt and an affidavit of mailing are more than sufficient to demonstrate Plaintiff's compliance with RPAPL §l304. Plaintiff has thus made a prima facie showing of entitlement to summary judgment as against Defour Jones, who, in failing to oppose the motion, has failed to show the existence of a genuine issue of material fact. (CPLR §3212[ [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Accordingly, Plaintiff is entitled to an order awarding it summary judgment against Defour Jones. Plaintiff is also entitled to an Order amending the caption to remove fictitious #1" Defendants "John Doe through "John Doe #12". Plaintiff has failed to establish its entitlement to summary judgment as against Juserene. Per the allegations in the complaint, Juscreñê is the current owner of the premises Juserene, is not, however, a signatory to the underlying note or mortgage, and Plaintiff's moving papers do not address, let alone demonstrate through admissible evidence, that Juserene's ownership interest is subordinate to or otherwise subject to Plaintiff's mortgage lien. As such, Plaintiff has failed to make a prima facie showing of its entitlement to summary judgment upon its complaint as against Juserene and that branch of its motion is denied without prejudice. The branch of Plaintiff's motion for an order appointing a referee is denied without prejudice as it would be inappropriate to take further proceedings while uncertainty may exist as to whether Juserene's interest in the premises are subject to foreclosure. It is hereby ORDERED that Plaintiff's motion for an order amending the caption is granted. The caption in this action is hereby amended and shall read as follows: 3 3 of 5 FILED: SULLIVAN COUNTY CLERK 02/11/2020 INDEX NO. E2017-927 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SULLIVAN THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR ASSET BACKED FUNDING CORPORATION, ASSET-BACKED SERIES 2005- CERTIFICATES, HE1, Index No. 0927-2017 Plaintiff, -against MONIQUE DEFOUR JONES, JUSERENE, LLC, Defendants. and it is further ORDERED that Plaintiff's motion for an order awarding it summary judgment upon its complaint as against Defendant Monique Defour Jones is granted; and it is further ORDERED that the branches of Plaintiff's motion for an order awarding it suñmary judgment upon its complaint as against Defendant Juserene, LLC and for the appointment of a referee to ascertain and compute are denied without prejudice to a subsequent, properly supported application; and it is further ORDERED that Plaintiff shall submit its subsequent application for summary judgment as agaiñst Defendant Juserene, LLC and/or for the appointment of a referee on or before April 15, 2020; and it is further ORDERED that if Plaintiff does not move for summary judgment as against Defendant Jusereñê, LLC, the parties shall appear for a conference on May 6, 2020 at 10:00 a.m. This shall constitute the Decision and Order of the Court. The original Decision and Order and all other papers are being delivered to the Supreme Court Clerk for transmission to the Sullivan 4 of 5 FILED: SULLIVAN COUNTY CLERK 02/11/2020 INDEX NO. E2017-927 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/02/2021 County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry. SO ORDERED. Dated: 5 , 2020 February NTER, J IAN D. SCHREIBMAN, JSC Papers considered: Notice of Motion for Summary Judgment, Default Judgment and Order of Reference and Affirmation in Support by Leah N. Jacob, Esq. dated September 30, 2019, with attached Exhibits; and Plaintiff's Memorandum of Law in Support by Leah N. Jacob, Esq. dated September 30, 2019. 5 5 of 5