Nationstar Mortg., LLC v. Calomarde

201 A.D.3d 940

158 N.Y.S.3d 593 (Mem)

NATIONSTAR MORTGAGE, LLC, respondent,

v.Ramiro CALOMARDE, appellant, et al., defendants.

2019–01207

Index No. 9998/13

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

Argued—December 21, 2021

January 26, 2022

Lawrence Spivak, Jamaica, NY, for appellant.

McCalla Raymer Leibert Pierce, LLC, New York, NY (Jane Torcia and Daniel S. LoPresti of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, ROBERT J. MILLER, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Ramiro Calomarde appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered March 15, 2019. The order and judgment of foreclosure and sale, upon an order of the same court dated September 27, 2016, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and an order of the same court, also dated September 27, 2016, among other things, granting the same relief to the plaintiff and appointing a referee to compute the amount due to the plaintiff, inter alia, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Ramiro Calomarde and for an order of reference are denied, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied, and the orders dated September 27, 2016, are modified accordingly.

On August 15, 2013, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Ramiro Calomarde (hereinafter the defendant). In his answer, the defendant asserted several affirmative defenses, including lack of standing. In or about July 2015, the defendant served disclosure demands upon the plaintiff, in which the defendant sought, among other things, production of the original note underlying the mortgage, to which the plaintiff failed to respond. In April 2016, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant opposed the motion, and cross-moved for summary judgment dismissing the complaint insofar as asserted against him, for leave to amend his answer, and to compel disclosure. In an order dated September 27, 2016, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. In a second order, also dated September 27, 2016, the court granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff. In an order and judgment of foreclosure and sale entered entered March 15, 2019, the court, among other things, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and directed the sale of the subject property. The defendant appeals.

Generally, in order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must produce the mortgage, the unpaid note, and evidence of the default (see HSBC Bank USA, N.A. v. Bhatti, 186 A.D.3d 817, 819, 130 N.Y.S.3d 474 ; Aurora Loan...