Nationstar Mortg., LLC v. Cantwell

177 A.D.3d 612

111 N.Y.S.3d 112

NATIONSTAR MORTGAGE, LLC, Appellant,

v.Margaret G. CANTWELL, et al., Respondents, et al., Defendants.

2017–02397

Index No. 50229/15

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

Argued - September 10, 2019

November 6, 2019

Akerman LLP, New York, N.Y. (Jordan M. Smith of counsel), for appellant.

Margaret G. Cantwell, Stormville, NY, respondent pro se, and David M. Bodisher, Stormville, NY, respondent

pro se (one brief filed).

MARK C. DILLON, J.P. COLLEEN D. DUFFY BETSY BARROS VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Dutchess County (James V. Brands, J.), dated February 1, 2017. The order, insofar as appealed from, (1) upon renewal and reargument, adhered to a prior determination in an order of the same court dated May 16, 2016, denying the plaintiff's motion for summary judgment dismissing the answers and counterclaims asserted by the defendants Margaret G. Cantwell and David M. Bodisher and for an order of reference, and (2), upon searching the record, awarded summary judgment to those defendants dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and, upon renewal and reargument, the plaintiff's motion for summary judgment dismissing the answers and counterclaims asserted by the defendants Margaret G. Cantwell and David M. Bodisher and for an order of reference is granted.

On October 30, 2006, Margaret G. Cantwell executed a note in the sum of $396,000 in favor of Geneva Mortgage Corp. (hereinafter Geneva). The note was secured by a mortgage on residential property in East Fishkill (hereinafter the premises), which was executed by both Cantwell and David M. Bodisher (hereinafter together the defendants).

By assignment of mortgage dated October 1, 2008, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for Geneva, assigned the mortgage to HSBC Bank USA, N.A., as trustee (hereinafter HSBC). By assignment of mortgage dated September 24, 2014, HSBC assigned the mortgage to the plaintiff.

On February 16, 2015, the plaintiff commenced this action against the defendants, among others, to foreclose the mortgage. The defendants separately interposed pro se answers to the complaint, in which they each asserted as affirmative defenses, inter alia, that the plaintiff lacked standing and that the action was barred by the statute of limitations. The defendants each alleged that the loan was accelerated on May 21, 2008, as set forth in a notice of default dated April 16, 2008, and that, therefore, the statute of limitations expired on May 21, 2014, prior to the commencement of the instant action on February 16, 2015.

Thereafter, the plaintiff moved, inter alia, for summary judgment dismissing the defendants' answers and counterclaims and for an order of reference. The defendants cross-moved, inter alia, pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them for lack of standing. In a supporting affidavit, Cantwell argued, inter alia, that the action was time-barred because the loan was accelerated on March 25, 2008, as set forth in a notice of default dated February 19, 2008. In an order dated May 16, 2016, the Supreme Court denied, in effect, with leave to renew after further proceedings regarding the issue of standing, both the plaintiff's motion and the defendants' cross motion.

The plaintiff moved for leave to renew and reargue its prior motion. The defendants opposed the motion. In an order dated February 1, 2017, the Supreme Court, inter alia, upon renewal and reargument, vacated the order dated May 16, 2016, denied the plaintiff's motion for summary judgment dismissing the defendants' answers and counterclaims and for an order of reference, and, upon searching the record, awarded summary judgment to the defendants dismissing the complaint insofar as asserted against them. The plaintiff appeals.

To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v. Matzen, 174 A.D.3d 504, 101 N.Y.S.3d 859 ; Aurora Loan Servs., LLC v. Vrionedes, 167 A.D.3d 829, 830, 91 N.Y.S.3d 150 ; JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ). Here, the plaintiff submitted the note, the mortgage, and evidence of default in the form of the affirmation of its vice president, which stated that the defendants failed to pay the installment payment due as of March 1, 2008, and all payments due thereafter, along with a copy of a "payment history" showing that no payments on the...