Deutsche Bank Nat'l Trust Co. v. Crosby

201 A.D.3d 878

161 N.Y.S.3d 316

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.Janice CROSBY, appellant, et al., defendants.

2018–06840

Index No. 4135/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 5, 2021

January 26, 2022

Law Office of Maggio & Meyer, PLLC, Bohemia, NY (Holly C. Meyer of counsel), for appellant.

Houser LLP, New York, NY (Michael C. Hughes of counsel), for respondent.

BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Janice Crosby appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated March 19, 2018. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Janice Crosby, to strike that defendant's answer and twelfth affirmative defense, and for an order of reference, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Janice Crosby, to strike that defendant's answer, and for an order of reference, and substituting therefor provisions denying those branches of the motion, and (2) by deleting the provision thereof referring the matter to a referee to ascertain and compute the amount due to the plaintiff; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On June 19, 2006, the defendant Janice Crosby (hereinafter the defendant) executed a note in the sum of $528,000 in favor of IndyMac Bank, F.S.B. (hereinafter IndyMac). The note was secured by a mortgage on residential property in Brooklyn. By Assignment of Mortgage dated September 9, 2009, Mortgage Electronic Registration Systems, Inc., as nominee for IndyMac, assigned the mortgage to Deutsche Bank National Trust Company, as Trustee of the IndyMac INDX Mortgage Loan Trust 2006–AR23, Mortgage Pass–Through Certificates, Series 2006–AR23 under the Pooling and Servicing Agreement dated July 1, 2006 (hereinafter the plaintiff). On May 10, 2010, the defendant executed a loan modification agreement. The defendant allegedly defaulted on her obligations under the note and mortgage by failing to make the monthly payments due on August 1, 2010, and thereafter.

On or about February 21, 2012, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage. The defendant interposed an answer dated April 2, 2012, in which she asserted, inter alia, various affirmative defenses, including that the plaintiff failed to comply with RPAPL 1304, that the plaintiff lacked standing, and, as a twelfth affirmative defense, that the signatures on the note and mortgage provided by the plaintiff were not hers.

By notice of motion dated March 16, 2015, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. The defendant opposed the motion. The defendant submitted with her opposition papers her affidavit dated April 14, 2015, stating, inter alia, that she "[did] not recall signing all of the alleged loan documents presented by the Plaintiff" and that the "signatures on the loan documents [were] not [hers]," along with a "Document Examiner Letter of Opinion," sworn to by Robert Baier, a "Forensic Document Examiner," on November 29, 2012. In an order dated December 14, 2015, the Supreme Court denied the motion, finding a triable issue of fact with respect to the defendant's contention that her signature was forged based on Baier's expert opinion. The court directed that the parties proceed to discovery, after which either party could make "any further motions." On May 25, 2016, the defendant's deposition was taken.

In May 2017, the plaintiff filed a second motion, inter alia, for summary judgment. The defendant opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against her for failure to comply with RPAPL 1306. The defendant submitted, inter alia, her affidavit dated April 14, 2015; her affidavit dated June 29, 2017, in which she denied receiving a notice of default dated November 10, 2010, or a RPAPL 1304 notice dated August 26, 2011; and Baier's letter of opinion. The plaintiff later withdrew its May 2017 summary judgment motion, and it does not appear from the record that the Supreme Court decided the defendant's cross motion.

By notice of motion dated October 9, 2017, the plaintiff again moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. In support of the motion, the plaintiff submitted the affidavit of Shannon Childs (hereinafter the Childs affidavit), an employee of Ocwen Financial Corporation, "whose indirect subsidiary is Ocwen Loan Servicing, LLC," the plaintiff's "loan servicer and attorney-in-fact." The plaintiff argued, among other things, that the defendant ratified the allegedly forged note and mortgage by continuing to make mortgage payments and by executing the loan modification agreement. The defendant opposed the motion, annexing to her opposing papers, among other things, her affidavit dated June 29, 2017, and Baier's letter of opinion.

In an order dated March 19, 2018, the Supreme Court granted the plaintiff's motion and, among other things, referred the matter to a referee. The defendant appeals.

Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v. Finger, 195 A.D.3d 789, 791, 145 N.Y.S.3d 820 ; Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25 ). Here, in support of its motion, the plaintiff submitted the note, the mortgage, and the Childs affidavit, in which Childs attested that the defendant defaulted under the terms of the loan and the modification agreement by failing to make the payments due on August 1, 2010, and thereafter.

The plaintiff established, prima facie, that there was no merit to the defendant's twelfth affirmative defense, alleging that the signatures on the note and mortgage were not hers. "Something more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature" ( Banco Popular N. Am. v. Victory Taxi Mgt., Inc., 1 N.Y.3d 381, 384, 774 N.Y.S.2d 480, 806 N.E.2d 488 ; see 82–90 Broadway Realty Corp. v. New York Supermarket, Inc., 154 A.D.3d 797, 799, 62 N.Y.S.3d 186 ). "Although an expert's opinion is not required to establish a triable issue of fact regarding a forgery allegation, where an expert is used to counter the moving party's prima facie proof, the expert opinion must be in admissible form and state with reasonable professional certainty that the signature at issue is not authentic" ( Banco Popular N. Am. v. Victory Taxi Mgt., Inc., 1 N.Y.3d at 384, 774 N.Y.S.2d 480, 806 N.E.2d 488 ).

Here, in his letter of opinion, Baier did not opine as to the authenticity of the signature on the note, and the defendant admitted at her deposition that the signature on the mortgage "looked like [hers]." In opposition, the defendant failed to raise a triable issue of fact as to the authenticity of the signatures on the note and mortgage.

In any event, contrary to the defendant's contention, the plaintiff established, prima facie, that the defendant ratified the allegedly forged note by continuing to make mortgage payments after receiving copies of the allegedly forged documents a "couple of months" after the closing and by retaining the...