Preview
FILED: KINGS COUNTY CLERK 05/09/2024 04:58 PM INDEX NO. 512425/2019
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 05/09/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
________________________________________________________________x
PHH MORTGAGE CORPORATION,
Plaintiff(s),
vs.
EILEEN PEREZ-SMILEY; et al.
Defendant(s).
________________________________________________________________X
Charles H. Jeanfreau, an attorney duly admitted to practice law before the Courts of the State of
New York, affirms under the penalty of perjury:
1. I am an associate with the law firm of Robertson, Anschutz, Schneid, Crane &
Partners, PLLC ("RAS"), attorneys for the Plaintiff, in this foreclosure action. I am fully familiar
with the facts, court papers and proceedings of this action based upon a review of the file
maintained by my office.
PRELIMINARY STATEMENT
2. This is an action for foreclosure of a mortgage on the real property located at 4511
Glendale Court, Brooklyn NY 11234 (the "Property").
3. This Affirmation is submitted in opposition to the Cross-Motion to Dismiss (the
"Motion") submitted by Defendant Eileen Perez-Smiley seeking an order dismissing the
71-79.1
Complaint. See NYSCEF Doc. No.
4. Defendant alleges that she is entitled to dismissal of the Complaint for several
1 Plaintiff's motion for summary judgment, default judgment, and appointment of a referee to compute, motion
sequence no. 1, has been pending since October 24, 2023. See NYSCEF Doc. No. 41-66. Defendant has filed no
opposition to the motion for summary judgment, though it may be that she intends the Cross-Motion to serve as such
opposition.
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reasons, none of which have any merit. In particular, Defendant appears to argue that the complaint
must be dismissed because Plaintiff has violated the federal Fair Debt Collection Practices Act, 15
U.S.C. § 1692, because as a matter of law a consumer cannot owe a debt in a consumer credit
transaction, and because Plaintiff has not supported the complaint with admissible evidence. Each
of these theories is either incorrect as a matter of law, unsupported by any evidence, or both.
Accordingly, the motion to dismiss should be denied in its entirety.
RELEVANT HISTORY
5. On or about February 1, 2008, Defendant executed a note in the amount of
$522,000.00 (the "Note"). To secure the amounts due under the Note, Defendant executed a
mortgage in favor of Mortgage Electronic Registration Systems, Inc. as nominee for Dynamic
"Mortgage"
Capital Mortgage, Inc. which created a lien on the Property (the and together with the
Note, the "Loan Documents"). See NYSCEF Doc. No. 1.
6. Defendant twice modified her loan, first on September 14, 2012 and later on
October 6, 2015. See NYSCEF Doc. No. 62.
7. Defendant breached the terms of the Loan Documents as modified by failing to
make the payment due on February 1, 2018 and each payment thereafter. See NYSCEF Doc. No.
57.
8. On June 5, 2019 as a result of Defendant's default under the Loan Documents as
modified, Plaintiff commenced this foreclosure action. See NYSCEF Doc. No. 1.
9. Defendant filed an Answer on July 12, 2019. See NYSCEF Doc. No. 25.
10. Plaintiff filed a motion seeking summary judgment, default judgment, and entry of
an order of reference on October 24, 2023. See NYSCEF Doc. No. 41-66.
11. Defendant has not opposed the motion for a default judgment. Instead, Defendant
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filed this motion to dismiss.
12. Plaintiff opposes the motion to dismiss in its entirety.
ARGUMENT
I. DEFENDANT IS Nor ENTITLED To DISMISSAL
13. Although the gist of Defendant's argument is somewhat difficult to discern, it
appears that Defendant claims that the complaint must be dismissed because of Plaintiff's alleged
violations of the Fair Debt Foreclosure Act and because Plaintiff has not established its prima facie
right to foreclose. Defendant's two arguments appear to be intertwined, as the basis of Defendant's
FDCPA claim appears to be that Plaintiffhas not supported its complaint with admissible evidence.
The FDCPA Does Not Entitle De fendant To Dismissal
14. Defendant has not supported her claim that Plaintiff somehow violated the FDCPA
with anything more than conclusory and unsupported statements that Plaintiff is a debt collector
and that Plaintiff has violated the FDCPA, without explaining exactly how Plaintiff did so. This is
not sufficient to support a motion to dismiss the complaint. See Ditech Servicing, Inc. v.
McFadden, 217 A.D.3d 923, 927, 193 N.Y.S.3d 37, 42 (2d Dep't 2023).
16. Even if Defendant had supported her claim, however, it would not give her grounds to
seek dismissal of the complaint, as alleged violations of the FDCPA are not a defense against a
foreclosure cause of action. See United Companies Lending Corp. v. Candela, 292 A.D.2d 800,
(4th
801, 740 N.Y.S.2d 543 Dep't 2002); US Bank, N.A. v. McPherson, 35 Misc.3d (A) (Sup. Ct.
(15
Queens Cty, 2012); cf Dearie v. Hunter, 183 Misc. 2d 336 Dep't App. Term 2000).
15. Thus, because Defendant has failed to establish that Plaintiff violated the FDCPA,
met the statutory definition of a debt collector, or committed any such violation within the
FDCPA's one year statute of limitations, and because any such violation even if supported would
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not undermine Plaintiff's prima facie right to foreclose, Defendant is not entitled to dismissal of
the complaint.
Plaintiff Has Demonstrated Its Prima Facie Case For Foreclosure
16. Defendant also claims that the complaint must be dismissed because Plaintiff has
not demonstrated its prima facie case for foreclosure. Leaving-aside the fact that, even if true, this
would support at most denial of Plaintiff's motion for summary judgment rather than dismissal,
Defendant is incorrect.
17. "A plaintiff in a mortgage foreclosure action establishes its prima facie entitlement
to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the
default." (2nd
defendant's U.S. Bank Nat. Ass I v. Cox, 148 A.D.3d 962, 49 N.Y.S.3d 527 Dept.
2017).
18. Here, Plaintiff's Complaint pleads the existence of the Loan Documents, the
Modifications, and the Defendant's default upon the tenns thereunder by failing to make her
mortgage payments.
19. Plaintiff's pleading is further supported by the Affidavit of Felix Rodriquez dated
September 12, 2022. See NYSCEF Doc. No. 57. While Defendant appears to claim that this
Plaintiff's proof is hearsay, the Rodriguez Affidavit and the documents attached thereto are
admissible pursuant to CPLR § 4518.
20. CPLR §4518 provides, in pertinent part, that
[a]ny writingmr record, whether in the form of an entry in a book or otherwise,
made as a memorandum or record of any act, transaction, occurrence or event, shall
be admissible in evidence in proof of that act, transaction, occurrence or event, if
the judge finds that it was made in the regular course of any business and that it
was the regular course of such business to make it, at the time of the act, transaction,
occurrence or event, or within a reasonable time thereafter. An electronic record,
as defined in section three hundred two of the state technology law, used or stored
as such a memorandum or record, shall be admissible in a tangible exhibit that is a
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true and accurate representation of such electronic record. The court may consider
the method or manner by which the electronic record was stored, maintained or
retrieved in determining whether the exhibit is a true and accurate representation of
such electronic record. All other circumstances of the making of the memorandum
or record, including lack of personal knowledge by the maker, may be proved to
affect its weight, but they shall not affect its admissibility. The term business
includes a business, profession, occupation and calling of every kind.
21. CPLR §4518 further provides that a business entity may admit a business record
through a person without personal knowledge of the document, its history or its specific contents
where that person is sufficiently familiar with the corporate records to aver that the record is what
it purports to be and that it came out of the entity's files. See Deleon v. Port Auth., 306 A.D.2d
146, 146 (1st Dept. 2003); see also First Interstate Credit Alliance, Inc. v. Sokol, 179 A.D.2d 583,
584 (1st Dept. 1992).
22. Here, the Rodriguez Affidavit laid a proper foundation for the introduction of the
business records attached thereto. In particular, Mr. Rodriguez stated (i) that he had "personal
knowledge of Plaintiff's records and record making practices, and how such records are made,
kept,"
used and (ii) that the records were created and maintained in the regular course of PHH's
business and were needed and relied upon in the performance of PHH's business functions, (iii)
that the records which were manually entered were made at or near the time of the transactions
documented by a person with personal knowledge thereof, and (iv) that the records included prior
servicer records, account ledgers, data compilations and electrically imaged documents which, like
the other records described in the Rodriguez Affidavit, were needed and relied upon in the course
of PHH's business. NYSCEF Doc. Óo. 57. This is more than sufficient to establish the
admissibility of the business records attached to the Rodriguez Affidavit.
23. In a foreclosure case, such writings or records may, and frequently do, include the
records of prior servicers. Such prior servicer records are admissible as well when they are needed
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and relied upon in the performance of the business functions of the current servicer. Bank of
America, N.A. v. Huertas, 195 A.D.3d 891, 150 N.Y.S.3d 301, 303 (2d Dep't 2021). The
Rodriguez Affidavit clearly provides states that such prior servicer records have been "maintained
PHH."
as business records of See NYSCEF Doc. No. 57.
24. the evidence set forth in the Rodriguez Affidavit is admissible and the·
Accordingly,
documents attached thereto demonstrate that Plaintiff has proven its prima facie case for
foreclosure. And because Plaintiff has done so, Defendant's motion to dismiss must be denied.
WHEREFORE, it is respectfully requested that this Court, deny Defendant's Motion in
its entirety, and for such other and further relief which this court may deem just, proper
and equitable.
I affirm this 9th day of May 2024, under the penalties of perjury under the laws of New York,
which may include a fine or imprisonment, that the foregoing is true, and I understand that this
document may be filed in an action or proceeding in a court of law.
Dated: May 9, 2024
Westbury, New York
Charles H. ,) anfre
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ATTORNEY'S AFFIRMATION
Charles H. Jeanfreau, an attorney at law licensed to practice in the State of New York, and
the attorney for Plaintiff in this action hereby certifies that, to the best of his/her knowledge,
information and belief, formed after an inquiry reasonable under the circumstances, the
presentation of this pleading, affidavit (or motion if applicable), or the contentions contained
herein are not frivolous as defined by 22 N.Y.C.R.R. 130-1.1(c).
Charles H. J nfreau
Word Count Certification
The total number of words in the foregoing brief, memorandum, affirmation or affidavit
inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc. is .
The document complies with the applicable word count limit and is based on the word
count of the word-processing system used to prepare the document.
Date: May 9, 2024
Westbury, New York
Charles H. Je eau
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Preview
FILED: KINGS COUNTY CLERK 05/09/2024 04:58 PM INDEX NO. 512425/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 05/09/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ________________________________________________________________x PHH MORTGAGE CORPORATION, Plaintiff(s), vs. EILEEN PEREZ-SMILEY; et al. Defendant(s). ________________________________________________________________X Charles H. Jeanfreau, an attorney duly admitted to practice law before the Courts of the State of New York, affirms under the penalty of perjury: 1. I am an associate with the law firm of Robertson, Anschutz, Schneid, Crane & Partners, PLLC ("RAS"), attorneys for the Plaintiff, in this foreclosure action. I am fully familiar with the facts, court papers and proceedings of this action based upon a review of the file maintained by my office. PRELIMINARY STATEMENT 2. This is an action for foreclosure of a mortgage on the real property located at 4511 Glendale Court, Brooklyn NY 11234 (the "Property"). 3. This Affirmation is submitted in opposition to the Cross-Motion to Dismiss (the "Motion") submitted by Defendant Eileen Perez-Smiley seeking an order dismissing the 71-79.1 Complaint. See NYSCEF Doc. No. 4. Defendant alleges that she is entitled to dismissal of the Complaint for several 1 Plaintiff's motion for summary judgment, default judgment, and appointment of a referee to compute, motion sequence no. 1, has been pending since October 24, 2023. See NYSCEF Doc. No. 41-66. Defendant has filed no opposition to the motion for summary judgment, though it may be that she intends the Cross-Motion to serve as such opposition. 1 of 7 FILED: KINGS COUNTY CLERK 05/09/2024 04:58 PM INDEX NO. 512425/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 05/09/2024 reasons, none of which have any merit. In particular, Defendant appears to argue that the complaint must be dismissed because Plaintiff has violated the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, because as a matter of law a consumer cannot owe a debt in a consumer credit transaction, and because Plaintiff has not supported the complaint with admissible evidence. Each of these theories is either incorrect as a matter of law, unsupported by any evidence, or both. Accordingly, the motion to dismiss should be denied in its entirety. RELEVANT HISTORY 5. On or about February 1, 2008, Defendant executed a note in the amount of $522,000.00 (the "Note"). To secure the amounts due under the Note, Defendant executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. as nominee for Dynamic "Mortgage" Capital Mortgage, Inc. which created a lien on the Property (the and together with the Note, the "Loan Documents"). See NYSCEF Doc. No. 1. 6. Defendant twice modified her loan, first on September 14, 2012 and later on October 6, 2015. See NYSCEF Doc. No. 62. 7. Defendant breached the terms of the Loan Documents as modified by failing to make the payment due on February 1, 2018 and each payment thereafter. See NYSCEF Doc. No. 57. 8. On June 5, 2019 as a result of Defendant's default under the Loan Documents as modified, Plaintiff commenced this foreclosure action. See NYSCEF Doc. No. 1. 9. Defendant filed an Answer on July 12, 2019. See NYSCEF Doc. No. 25. 10. Plaintiff filed a motion seeking summary judgment, default judgment, and entry of an order of reference on October 24, 2023. See NYSCEF Doc. No. 41-66. 11. Defendant has not opposed the motion for a default judgment. Instead, Defendant 2 of 7 FILED: KINGS COUNTY CLERK 05/09/2024 04:58 PM INDEX NO. 512425/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 05/09/2024 filed this motion to dismiss. 12. Plaintiff opposes the motion to dismiss in its entirety. ARGUMENT I. DEFENDANT IS Nor ENTITLED To DISMISSAL 13. Although the gist of Defendant's argument is somewhat difficult to discern, it appears that Defendant claims that the complaint must be dismissed because of Plaintiff's alleged violations of the Fair Debt Foreclosure Act and because Plaintiff has not established its prima facie right to foreclose. Defendant's two arguments appear to be intertwined, as the basis of Defendant's FDCPA claim appears to be that Plaintiffhas not supported its complaint with admissible evidence. The FDCPA Does Not Entitle De fendant To Dismissal 14. Defendant has not supported her claim that Plaintiff somehow violated the FDCPA with anything more than conclusory and unsupported statements that Plaintiff is a debt collector and that Plaintiff has violated the FDCPA, without explaining exactly how Plaintiff did so. This is not sufficient to support a motion to dismiss the complaint. See Ditech Servicing, Inc. v. McFadden, 217 A.D.3d 923, 927, 193 N.Y.S.3d 37, 42 (2d Dep't 2023). 16. Even if Defendant had supported her claim, however, it would not give her grounds to seek dismissal of the complaint, as alleged violations of the FDCPA are not a defense against a foreclosure cause of action. See United Companies Lending Corp. v. Candela, 292 A.D.2d 800, (4th 801, 740 N.Y.S.2d 543 Dep't 2002); US Bank, N.A. v. McPherson, 35 Misc.3d (A) (Sup. Ct. (15 Queens Cty, 2012); cf Dearie v. Hunter, 183 Misc. 2d 336 Dep't App. Term 2000). 15. Thus, because Defendant has failed to establish that Plaintiff violated the FDCPA, met the statutory definition of a debt collector, or committed any such violation within the FDCPA's one year statute of limitations, and because any such violation even if supported would 3 of 7 FILED: KINGS COUNTY CLERK 05/09/2024 04:58 PM INDEX NO. 512425/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 05/09/2024 not undermine Plaintiff's prima facie right to foreclose, Defendant is not entitled to dismissal of the complaint. Plaintiff Has Demonstrated Its Prima Facie Case For Foreclosure 16. Defendant also claims that the complaint must be dismissed because Plaintiff has not demonstrated its prima facie case for foreclosure. Leaving-aside the fact that, even if true, this would support at most denial of Plaintiff's motion for summary judgment rather than dismissal, Defendant is incorrect. 17. "A plaintiff in a mortgage foreclosure action establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the default." (2nd defendant's U.S. Bank Nat. Ass I v. Cox, 148 A.D.3d 962, 49 N.Y.S.3d 527 Dept. 2017). 18. Here, Plaintiff's Complaint pleads the existence of the Loan Documents, the Modifications, and the Defendant's default upon the tenns thereunder by failing to make her mortgage payments. 19. Plaintiff's pleading is further supported by the Affidavit of Felix Rodriquez dated September 12, 2022. See NYSCEF Doc. No. 57. While Defendant appears to claim that this Plaintiff's proof is hearsay, the Rodriguez Affidavit and the documents attached thereto are admissible pursuant to CPLR § 4518. 20. CPLR §4518 provides, in pertinent part, that [a]ny writingmr record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a 4 of 7 FILED: KINGS COUNTY CLERK 05/09/2024 04:58 PM INDEX NO. 512425/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 05/09/2024 true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind. 21. CPLR §4518 further provides that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity's files. See Deleon v. Port Auth., 306 A.D.2d 146, 146 (1st Dept. 2003); see also First Interstate Credit Alliance, Inc. v. Sokol, 179 A.D.2d 583, 584 (1st Dept. 1992). 22. Here, the Rodriguez Affidavit laid a proper foundation for the introduction of the business records attached thereto. In particular, Mr. Rodriguez stated (i) that he had "personal knowledge of Plaintiff's records and record making practices, and how such records are made, kept," used and (ii) that the records were created and maintained in the regular course of PHH's business and were needed and relied upon in the performance of PHH's business functions, (iii) that the records which were manually entered were made at or near the time of the transactions documented by a person with personal knowledge thereof, and (iv) that the records included prior servicer records, account ledgers, data compilations and electrically imaged documents which, like the other records described in the Rodriguez Affidavit, were needed and relied upon in the course of PHH's business. NYSCEF Doc. Óo. 57. This is more than sufficient to establish the admissibility of the business records attached to the Rodriguez Affidavit. 23. In a foreclosure case, such writings or records may, and frequently do, include the records of prior servicers. Such prior servicer records are admissible as well when they are needed 5 of 7 FILED: KINGS COUNTY CLERK 05/09/2024 04:58 PM INDEX NO. 512425/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 05/09/2024 and relied upon in the performance of the business functions of the current servicer. Bank of America, N.A. v. Huertas, 195 A.D.3d 891, 150 N.Y.S.3d 301, 303 (2d Dep't 2021). The Rodriguez Affidavit clearly provides states that such prior servicer records have been "maintained PHH." as business records of See NYSCEF Doc. No. 57. 24. the evidence set forth in the Rodriguez Affidavit is admissible and the· Accordingly, documents attached thereto demonstrate that Plaintiff has proven its prima facie case for foreclosure. And because Plaintiff has done so, Defendant's motion to dismiss must be denied. WHEREFORE, it is respectfully requested that this Court, deny Defendant's Motion in its entirety, and for such other and further relief which this court may deem just, proper and equitable. I affirm this 9th day of May 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. Dated: May 9, 2024 Westbury, New York Charles H. ,) anfre 6 of 7 FILED: KINGS COUNTY CLERK 05/09/2024 04:58 PM INDEX NO. 512425/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 05/09/2024 ATTORNEY'S AFFIRMATION Charles H. Jeanfreau, an attorney at law licensed to practice in the State of New York, and the attorney for Plaintiff in this action hereby certifies that, to the best of his/her knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this pleading, affidavit (or motion if applicable), or the contentions contained herein are not frivolous as defined by 22 N.Y.C.R.R. 130-1.1(c). Charles H. J nfreau Word Count Certification The total number of words in the foregoing brief, memorandum, affirmation or affidavit inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is . The document complies with the applicable word count limit and is based on the word count of the word-processing system used to prepare the document. Date: May 9, 2024 Westbury, New York Charles H. Je eau 7 of 7