JPMorgan Chase Bank, N.A. v Martin 2017 NY Slip Op 32350(U) October 26, 2017 Supreme Court, Suffolk County Docket Number: 14017/2011 Judge: Robert F.

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1 JPMorgan Chase Bank, N.A. v Martin 2017 NY Slip Op 32350(U) October 26, 2017 Supreme Court, Suffolk County Docket Number: 14017/2011 Judge: Robert F. Quinlan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* 1] SHORT FORM ORDER INDEX No /2011 PRESENT: SUPRE~1E COURT - ST A TE OF NEW YORK PART 27 - SUFFOLK COUNTY Hon. ROBERT F. QUINLAN Justice of the Supreme Court X JPMORGAN CHASE BANK, NATIONAL ASSOCJA TION, - against - MICHAEL W. MARTTN; et al. Plaintiff, MOTION DA TE: 03/22/17 SUBMIT DATE: 03/23/17 Mot. Seq.: # 00..J- Mot D FEIN, SUCH & CRANE, LLP Attorneys for Plaintiff 1400 Old Country Road, Suite CI03 Westbury, NY MICHAEL W. MARTIN, PRO SE 16 Culross Drive Rock')' Point, NY I 1788 (and others, see attached) Defendants X Upon the following papers read on this motion for an order striking defendant's answer. for default judgment and judgment of foreclosure and sale; Notice of Motion/ Order to Show Cause and supporting papers dated February22, 2017: Not-tee of C1oss Motion and sttpporti11g pape1s, AMoe1 ing Affidavits 1tnd supporting pape1s, Rcpi)i:11g Affidinits and st:1ppo1'1:ing pttpe1 s, Othe1, (and ttltet hea1 i:ng counsel i:n st:1ppo1 t and opposed to tne n 1otion) it is, ORDERED that this motion by the plaintiff for an order awarding it summary judgment against the answering defendant, fixing the default as against the non-appearing, non-answering defendants, and judgment of foreclosure and sale, is granted to the extent set forth herein and in plaintiffs proposed order, as modified by the court, signed simultaneously herewith; and it is further ORDERED that plaintiff is directed to serve an executed copy of the order of reference amending the caption of this action upon the Calendar Clerk of this Court within 30 days of the date of this order and all further proceedings are to proceed under that caption: and it is further; ORDERED that plaintiff is to include in any proposed order of judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Suffolk County Foreclosure Surplus Monies form contained in Suffolk County Administrative Order# 41-13; and it is further ORDERED, that, if a prior notice of pendency is outdated, plaintiff is directed to file a successive notice of pendency at least twenty (20) days prior to the submission of any proposed judgment of foreclosure and sale, submitting a copy thereof with proof of filing with any proposed judgment of foreclosure and sale: and it is further. ORDERED that within 30 days of the date of this order, plaintiff is to serve a copy of the order of reference upon all parties who have appeared in this action, as well as upon the referee and thereafter file the affidavits of service with the Clerk of the Court; and it is further

3 [* 2] JPMorgan v Martin Index No /2011 Page2 ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee. and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order, plaintiff's submissions; defendant(s) may submit written objections and proof in support thereof, defendant's objections, to the referee within 14 days of the mailing of plaintiffs submissions: and it is further ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintifrs submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further ORDERED that the referee's duties are defined by this order of reference (CPLR RP APL 1321 ). and the referee has no po\\er beyond that \vhich is limited by this order ofreference to the mini!>terial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold.in parcels; the referee shall hold no hearing. take no testimony or evidence other than by \\'ritten submission, and make no ruling on admissibility of evidence: the referee s report is merely advisory and the court is the ultimate arbiter of the issues, if the objections by defendant(s) raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within bis/her report: and it is further ORDERED Lhat ifdefendant(s) has submitted o~jcctions and proof to the referee. defendant(s) shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to submit objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale: failure to raise and submit the objections made before the referee in opposition to plaintiffs application for a judgment offorccjosure and sale shall constitute a waiver of those objections on the motion: and it is further ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further ORDERED that this action shall be calendared for a status conference on Tuesday, February 27, 2018 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date. no appearance will be necessary; and it is further ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action. but wi ll be the subject of the status conference at which future compliance will be determined. This is an action to foreclose a mortgage on the premises known as 16 Culross Drive, Rocky Point, Suffolk County, NY ("the property"). Plaintiff JPMorgan Chase Bank, National Association ("plaintiff') commenced this action by filing a summons and complaint on April 25, All defendants were served, none of the defendants answered or appeared except for defendant Michael W. Martin (' defendant.. ) who filed a verified answer dated June 4, 2011 and Calvary Portoflio Services, LLC which filed a limited notice of appearance. Defendant's answer consisted of general denials and three affirmative defenses. Defendant's first and second affirmative defenses allege plaintiff wilfully and negligently violated its fiduciary responsibilities, hi s third affirmative defense alleges plaintiff's customer service provider did not provide defendant with correct information when he called to try to resolve the issues relating to late payments and

4 [* 3] JPMorgan v Martin Index No /2011 Page3 escrow payments. Plaintiff's initial motion for order of reference (seq. #001) was rejected by the court on August as this action had been transferred to the court s Vacant and Abandoned Properties ("VAP'') Part on July 29, Pursuant to VAP rules plaintiff then filed a combined motion for summary judgment and judgment of foreclosure and sale (seq. #002) which was denied by order dated August 9, 2016 for failure to provide the calculations necessary for the court to compute pursuant to RP APL Due to the enactment of RP APL 1309, the YAP program ended December 19, 2016 and this matter was transferred to the general inventory of Part 27. Plaintiff now brings a V AP motion for summary judgment, for default against the non-answering, non-appearing defendants, and judgment of foreclosure. As the V AP program has terminated the court treats plaintifrs motion as one for summary judgment and order of reference. Plaintiffs submissions in suppo1t of its motion include its attorney's affirmation, affidavit in support of summary judgment, the note, mortgage. affidavits of service and pleadings. Defendant did not oppose the motion. Plaintiffs unopposed motion sufficiently demonstrates its entitlement to the relief requested (see Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566 [2d Dept 2014); Plaza Equities. LLC v Lamberti, 118 AD3d 688 [2dDept2014); Jessabell Realty Corp. v Gonzalez, 117 AD3d 908 f2d Dept 2014)). Defendant's answer and affirmative defenses alone are insufficient, as a matter of law, to defeat plaintiffs motion (see Flagstar Bank v Bellafiore, 94 AD3d 1044 l 2d Dept 2012)). Where a defendant fails to oppose a motion for summary judgment, there is, in effect, a concession that no question offact exists, and the facts as alleged in the moving papers may be deemed admitted (Kuehne & Nagel v Baiden, 36 NY2d 539 l 1975)). As there is no opposition, no triable issue of fact was raised (see US. Bank Natl. Assn. v Cox, 148 AD3d 962 [2d Dept2017]; Nationstar Mortg., LLCv. Wong, 132 AD3d 825 [2d Dept2015]; Onewest Bank, FSBv. Prince, 130 A.D.3d 700 [2d Dept 2015]; Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841 [2d Dept 2015]). In an action to foreclose a mortgage, a plaintiff establishes its prima facie case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see Wells Fargo Bank, NA. v. DeSouza, 126 AD3d 965 [2d Dept 2015); Wells Fargo Bank, NA v Erbobo, 127 A03d [2d Dept 2015); Wells Fargo Bank, NA v lvforgan, 139 AD3d 1046 (2d Dept 2016]). Here, plaintiff has established its entitlement to summary judgment against the answering defendant as such papers included a copy of the mortgage and the unpaid note together with due evidence of defendant's default (see Bank of New York Mellon Trust Co. v McCall, 116 AD3d 993 [2d Dept 2014)). As to the remaining affirmative defenses plead in defendant's answer, they lack merit and are no defense to the action. Further, the failure to raise and suppo11 pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus subject to dismissal (see New York Commercial bank v.! Realty F Rockaway, Ltd., 108 AD3d 756 (2d Dept 2013); Starkman v City of Long Beach, 106 AD3d 1076 [2d Dept 2013]; Kuehne & Nagel Inc. v Baiden, 36 NY2d 539 [1975] ; Katz v Miller, 120 AD3d 2d Dept 2014]). Finally, plaintiffs request that the court delay a decision on the motion for ninety (90) days because of the rules issued by the Consumer Financial Protection Bureau (CFPB) prohibiting 'dual tracking' (see 12CFR ) is denied. The court notes that 12 CFR governs a servicer 's response to loss

5 [* 4] JPMorgan v Martin Index No /2011 Page4 mitigation applications (emphasis supplied). Fm1her. the CFPB has stated that "nothing in l(g) prohibits a servicer from continuing to move forward with a foreclosure process {assuming that the first notice or filing was made before a servicer received a complete loss mitigation application) so long as the servicer does not take an action that will directly result in the issuance of a foreclosure judgment or order of sale, or a foreclosure sale, see Mortgage Servicing Rules, 78 Fed. Reg. at I Here the motion was marked submitted March 23, Since the court has deemed the motion one for swnmary judgment and not judgment of foreclosure and sale, and the CFPB rules apply to the servicer and not the court, the court sees no reason to delay the decision on the motion any longer. Accordingly plaintiff's application is granted and the proposed order, as modified by the court, is signed contemporaneously herewith. Dated: October:?(:,, 2017 ~~c~ FINAL DISPOSITl01' _L. NON-FINAL DISPOSITION

6 [* 5] TO: MICHAEL W. MARTIN, PRO SE 16 CULROSS DRIVE ROCKY POINT, NY SOCIAL SERVICES OF SUFFOLK COUNTY 3085 VETERANS HWY. RONKONKOMA, NY CITIMORTGAGE INC., S/B/M EAB MORTGAGECOMPANY,INC SECRETARY OF STATE 99 WASHINGTON A VE ALBANY, NY PATCHOGUE, NY KIMBERLY A. DAVIS 9IRISHLANE EAST ISLIP, NY COMMISSIONER OFT AXA TION & FINANCE CIVIL ENFORCEMENT C 0 ATC 250 VETERANS HWY. HAUPPAUGE, NY THECULROSSCORPORATION SECRETARY OF STATE 99 WASHINGTON A VE ALBANY, NY CAVALRY PORTFOLIO SERVICES LLC, AS ASSIGNEE OF CAVALRY SPV I LLC AS ASSIGNEE OF CITIBANK USA, N.A. 111 EIGHTH A VENUE NEW YORK, NY PEOPLE OF THE STA TE OF NEW YORK 300 MOTOR PKWY., STE. 125 HAUPPAUGE, NY INCORPORATED VILLAGE OF PATCHOGUE 14 BAKER STREET