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INDEX NO. 034446/2012
FILED: SUFFOLK COUNTY CLERK 0670272016 08:13 PM
NYSCEF DOC. NO. 72 RECEIVED NYSCEF 06/02/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
— eee ee
Wells Fargo Bank, N.A., as Trustee for the Holders of Index No.: 034446/12
Bear Stearns Asset-Backed Securities I Trust 2007-AC5,
Asset-Backed Certificates, Series 2007-ACS5,
Hon. David T. Reilly
Plaintiff,
-against- REPLY AFFIRMATION IN
FURTHER SUPPORT OF
Kenneth J. Abruzzi, Arrow Financial Services LLC, PLAINTIFF’S MOTION FOR
Swezey Fuel Co. Inc., 84 Lumber Company LP, William SUMMARY JUDGMENT
Long, Cypress Financial Recoveries LLC and “JOHN AND RELATED RELIEF
DOE #1” through “JOHN DOE #10”, the last ten names
being fictitious and unknown to the plaintiff, the person or,
parties intended being the persons or parties, if any, Mortgaged Premises:
having or claiming an interest in or lien upon the 541 Islip Avenue
mortgaged premises described in the Complaint, Islip, New York 11751
Defendants.
COURTNEY J. PETERSON, an attorney duly admitted to practice in the courts
of the State of New York, affirms under penalty of perjury that:
1 Tam an associate at Bryan Cave LLP, the current attorneys for the plaintiff
Wells Fargo Bank, N.A., as Trustee for the Holders of Bear Stearns Asset-Backed Securities I
Trust 2007-AC5, Asset-Backed Certificates, Series 2007-ACS5 (‘Plaintiff’), in this mortgage
foreclosure action.
2. I am fully familiar with the facts and circumstances stated herein and I
submit this affidavit in further support of Plaintiff's motion: (i) pursuant to CPLR 3212, granting
summary judgment in favor of Plaintiff and against defendant Kenneth J. Abruzzi (“Borrower”),
on the grounds that there are no triable issues of fact in this proceeding, and that accordingly,
upon the presentation and the coming in of the Referee’s Report, Plaintiff is entitled to all of the
relief requested in its Complaint, including judgment of foreclosure and sale, as a matter of law;
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(ii) dismissing, with prejudice, each of Borrower’s eleven affirmative defenses and six
counterclaims as each is without merit; (iii) amending the caption of this proceeding by directing
that: (a) Mark Healy be substituted for “John Doe #1”, (b) the names of the remaining John Doe
defendants be deleted from the caption; (iv) pursuant to CPLR § 3215, granting judgment on
default against defendants Arrow Financial Services LLC, Swezey Fuel Co. Inc., 84 Lumber
Company LP, William Long, Cypress Financial Recoveries LLC and Mark Healy, as each has
failed to appear, answer or otherwise move with respect to the Complaint after being duly
served, and the time in which to do so is now expired; (v) pursuant to RPAPL § 1321(1),
referring this action to some suitable person as a referee (the “Referee”) (a) to ascertain and
compute the amount due Plaintiff for principal and interest under the loan as set forth in the
Complaint, and for any other amounts due and owing the Plaintiff, including any sums advanced
by Plaintiff or the original mortgagee under the terms of the mortgage, (b) to examine and report
whether the mortgaged premises should be sold in a single parcel, and (c) to direct that upon
presentation and coming in of the Referee’s Report, Plaintiff have the usual judgment of
foreclosure and sale; and (vi) for such other and further relief as this Court may deem just and
proper (the “Motion”).
3 As further explained in the accompanying reply memorandum of law,
Borrower does not oppose and therefore concedes, as a matter of law, that nine of his eleven
affirmative defenses, as well as each of his six counterclaims, should be summarily dismissed
with prejudice, that the Court should permit amendment of the caption, that the remaining John
Doe defendants should be deleted from the caption and that default should be entered against the
nonanswering defendants, as Borrower’s opposition papers do not address these aspects of the
Motion. Accordingly, for the reasons set forth in Memorandum of Law in Support of its Motion
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20f5
for Summary Judgment and Related Relief (“Moving Memo”), the Court should grant these
uncontested aspects of Plaintiffs Motion.
4 In opposition to the Motion, Borrower also does not dispute that he is in
default and has not made any payments on his Mortgage loan since April 2008.
5 Instead, in opposition to the Motion, Borrower solely relies upon his
conclusory argument, unsupported by any evidence, that Plaintiff lacked standing to commence
the foreclosure action. Borrower’s claim is controverted by the evidence proffered by Plaintiff
on this Motion, in admissible form.
6 In support of the Motion, Plaintiff submitted the affidavit of Lorena P.
Diaz, Assistant Vice President and Operations Team Manager at Bank of America, N.A.
(“BANA”), sworn to February 8, 2016. BANA was the originator of Borrower’s Loan and the
servicer of the Loan since origination through October 31, 2013. As servicer and originator of
the Loan, BANA created and maintained the records applicable to the origination of the Loan,
execution of the indorsement on the Note, transfer of possession and delivery of the Note and
other loan documents to Plaintiff and Borrower’s default on the Loan. In making her affidavit,
Ms. Diaz relied on her personal review of the books and records of BANA. The information
contained in and the documents annexed to the affidavit of Ms. Diaz are admissible pursuant to
the business records exception to the hearsay rule.
7
In her affidavit, Ms. Diaz established that Plaintiff has been the owner and
holder of the Note, indorsed in blank, since June 29, 2007 and that Plaintiff has had physical
possession of the indorsed Note since that time including on November 8, 2012, the date that this
action was commenced. Plaintiffs standing is well established. Borrower has not offered any
evidence to defeat Plaintiffs standing. To the extent that Borrower challenges Plaintiff's
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standing on the ground that Plaintiff has not produced any evidence to establish how the Note
was physically transferred to Plaintiff, Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 366,
12 N.Y.S.3d 612, 615 (2015), teaches that this detail about the method of transmittal is not
necessary to establish standing. (“[T]he note, and not the mortgage, is the dispositive instrument
that conveys standing to foreclose under New York law. In the current case the note was
transferred to [plaintiff] before the commencement of the foreclosure action—that is what
matters.”)
8 Borrower’s claims that Plaintiffs status as holder of the Note is in
question because of the commencement an earlier foreclosure action against him, by BANA in
its own name, as servicer of the Loan, on February 7, 2008 by the now defunct Baum firm,
cannot defeat Plaintiff's standing. That earlier foreclosure action was voluntary discontinued
without an adjudication on the merits. It has no collateral estoppel or res judicata effect.
Moreover, the Second Department has made clear that standing is determined as of the date of
commencement of the action. Here, Plaintiff has established its standing at the time of
commencement of this action.
9 Lastly, Borrower’s attempts to attack the Assignment of the Mortgage and
indorsement on the Note are legally ineffective and belied by the evidence submitted on this
Motion. Plaintiff does not rely on the Assignment of Mortgage to establish its standing, and the
indorsement on the Note was properly executed by an officer of BANA, the Loan originator.
Specifically, in its Moving Memo, Plaintiff established that Christina M. Schmitt was authorized
and did execute the indorsement on the Note in her position as Assistant Vice President of
BANA, in accordance with BANA’s Bylaws § 5.2.
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CONCLUSION
10. No previous application has been made for any of the relief requested
herein.
WHEREFORE, for all of the foregoing reasons, Plaintiff's Motion should be
granted in all respects and the proposed order of reference should be submitted.
Dated: New York, New York
June 2, 2016
/
MR LULL
COUR’ PETERSON
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INDEX NO. 034446/2012 FILED: SUFFOLK COUNTY CLERK 0670272016 08:13 PM NYSCEF DOC. NO. 72 RECEIVED NYSCEF 06/02/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK — eee ee Wells Fargo Bank, N.A., as Trustee for the Holders of Index No.: 034446/12 Bear Stearns Asset-Backed Securities I Trust 2007-AC5, Asset-Backed Certificates, Series 2007-ACS5, Hon. David T. Reilly Plaintiff, -against- REPLY AFFIRMATION IN FURTHER SUPPORT OF Kenneth J. Abruzzi, Arrow Financial Services LLC, PLAINTIFF’S MOTION FOR Swezey Fuel Co. Inc., 84 Lumber Company LP, William SUMMARY JUDGMENT Long, Cypress Financial Recoveries LLC and “JOHN AND RELATED RELIEF DOE #1” through “JOHN DOE #10”, the last ten names being fictitious and unknown to the plaintiff, the person or, parties intended being the persons or parties, if any, Mortgaged Premises: having or claiming an interest in or lien upon the 541 Islip Avenue mortgaged premises described in the Complaint, Islip, New York 11751 Defendants. COURTNEY J. PETERSON, an attorney duly admitted to practice in the courts of the State of New York, affirms under penalty of perjury that: 1 Tam an associate at Bryan Cave LLP, the current attorneys for the plaintiff Wells Fargo Bank, N.A., as Trustee for the Holders of Bear Stearns Asset-Backed Securities I Trust 2007-AC5, Asset-Backed Certificates, Series 2007-ACS5 (‘Plaintiff’), in this mortgage foreclosure action. 2. I am fully familiar with the facts and circumstances stated herein and I submit this affidavit in further support of Plaintiff's motion: (i) pursuant to CPLR 3212, granting summary judgment in favor of Plaintiff and against defendant Kenneth J. Abruzzi (“Borrower”), on the grounds that there are no triable issues of fact in this proceeding, and that accordingly, upon the presentation and the coming in of the Referee’s Report, Plaintiff is entitled to all of the relief requested in its Complaint, including judgment of foreclosure and sale, as a matter of law; 1930785 lof 5 (ii) dismissing, with prejudice, each of Borrower’s eleven affirmative defenses and six counterclaims as each is without merit; (iii) amending the caption of this proceeding by directing that: (a) Mark Healy be substituted for “John Doe #1”, (b) the names of the remaining John Doe defendants be deleted from the caption; (iv) pursuant to CPLR § 3215, granting judgment on default against defendants Arrow Financial Services LLC, Swezey Fuel Co. Inc., 84 Lumber Company LP, William Long, Cypress Financial Recoveries LLC and Mark Healy, as each has failed to appear, answer or otherwise move with respect to the Complaint after being duly served, and the time in which to do so is now expired; (v) pursuant to RPAPL § 1321(1), referring this action to some suitable person as a referee (the “Referee”) (a) to ascertain and compute the amount due Plaintiff for principal and interest under the loan as set forth in the Complaint, and for any other amounts due and owing the Plaintiff, including any sums advanced by Plaintiff or the original mortgagee under the terms of the mortgage, (b) to examine and report whether the mortgaged premises should be sold in a single parcel, and (c) to direct that upon presentation and coming in of the Referee’s Report, Plaintiff have the usual judgment of foreclosure and sale; and (vi) for such other and further relief as this Court may deem just and proper (the “Motion”). 3 As further explained in the accompanying reply memorandum of law, Borrower does not oppose and therefore concedes, as a matter of law, that nine of his eleven affirmative defenses, as well as each of his six counterclaims, should be summarily dismissed with prejudice, that the Court should permit amendment of the caption, that the remaining John Doe defendants should be deleted from the caption and that default should be entered against the nonanswering defendants, as Borrower’s opposition papers do not address these aspects of the Motion. Accordingly, for the reasons set forth in Memorandum of Law in Support of its Motion 1930785 20f5 for Summary Judgment and Related Relief (“Moving Memo”), the Court should grant these uncontested aspects of Plaintiffs Motion. 4 In opposition to the Motion, Borrower also does not dispute that he is in default and has not made any payments on his Mortgage loan since April 2008. 5 Instead, in opposition to the Motion, Borrower solely relies upon his conclusory argument, unsupported by any evidence, that Plaintiff lacked standing to commence the foreclosure action. Borrower’s claim is controverted by the evidence proffered by Plaintiff on this Motion, in admissible form. 6 In support of the Motion, Plaintiff submitted the affidavit of Lorena P. Diaz, Assistant Vice President and Operations Team Manager at Bank of America, N.A. (“BANA”), sworn to February 8, 2016. BANA was the originator of Borrower’s Loan and the servicer of the Loan since origination through October 31, 2013. As servicer and originator of the Loan, BANA created and maintained the records applicable to the origination of the Loan, execution of the indorsement on the Note, transfer of possession and delivery of the Note and other loan documents to Plaintiff and Borrower’s default on the Loan. In making her affidavit, Ms. Diaz relied on her personal review of the books and records of BANA. The information contained in and the documents annexed to the affidavit of Ms. Diaz are admissible pursuant to the business records exception to the hearsay rule. 7 In her affidavit, Ms. Diaz established that Plaintiff has been the owner and holder of the Note, indorsed in blank, since June 29, 2007 and that Plaintiff has had physical possession of the indorsed Note since that time including on November 8, 2012, the date that this action was commenced. Plaintiffs standing is well established. Borrower has not offered any evidence to defeat Plaintiffs standing. To the extent that Borrower challenges Plaintiff's 1930785 3 0f 5 standing on the ground that Plaintiff has not produced any evidence to establish how the Note was physically transferred to Plaintiff, Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 366, 12 N.Y.S.3d 612, 615 (2015), teaches that this detail about the method of transmittal is not necessary to establish standing. (“[T]he note, and not the mortgage, is the dispositive instrument that conveys standing to foreclose under New York law. In the current case the note was transferred to [plaintiff] before the commencement of the foreclosure action—that is what matters.”) 8 Borrower’s claims that Plaintiffs status as holder of the Note is in question because of the commencement an earlier foreclosure action against him, by BANA in its own name, as servicer of the Loan, on February 7, 2008 by the now defunct Baum firm, cannot defeat Plaintiff's standing. That earlier foreclosure action was voluntary discontinued without an adjudication on the merits. It has no collateral estoppel or res judicata effect. Moreover, the Second Department has made clear that standing is determined as of the date of commencement of the action. Here, Plaintiff has established its standing at the time of commencement of this action. 9 Lastly, Borrower’s attempts to attack the Assignment of the Mortgage and indorsement on the Note are legally ineffective and belied by the evidence submitted on this Motion. Plaintiff does not rely on the Assignment of Mortgage to establish its standing, and the indorsement on the Note was properly executed by an officer of BANA, the Loan originator. Specifically, in its Moving Memo, Plaintiff established that Christina M. Schmitt was authorized and did execute the indorsement on the Note in her position as Assistant Vice President of BANA, in accordance with BANA’s Bylaws § 5.2. 1930785, 4 of 5 CONCLUSION 10. No previous application has been made for any of the relief requested herein. WHEREFORE, for all of the foregoing reasons, Plaintiff's Motion should be granted in all respects and the proposed order of reference should be submitted. Dated: New York, New York June 2, 2016 / MR LULL COUR’ PETERSON 1930785 5 of 5