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Adam Leitman Bailey, P.C. Defeats Standing Defense and Wins Summary Judgment for Foreclosing Plaintiff


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In Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, its Trustee v. Graffagnino, et al., a highly contested foreclosure proceeding, Adam Leitman Bailey, P.C. won a motion for summary judgment and an order of reference, in favor of the foreclosing Plaintiff, by sufficiently establishing the Plaintiff’s entitlement to judgment as a matter of law, and by defeating the seventeen affirmative defenses and six counterclaims asserted by the Borrowers in their answer.

ALBPC was retained by the foreclosing Plaintiff to handle the action from commencement. Accordingly, from the outset, ALBPC took all steps necessary to avoid any potential triable issues of fact which could have been raised by the Borrowers in opposition to the action, including annexing the subject note with endorsement to the foreclosing Plaintiff to the filed complaint.

In their answer, the Borrowers alleged, inter alia, that the Plaintiff failed to provide required notices under the mortgage and also denied Plaintiff’s compliance with RPAPL § 1304.

In preparation for moving for summary judgment, ALBPC tracked down the company used by the servicer for the foreclosing Plaintiff to serve the notices of default and RPAPL § 1304 90-day notices upon the Borrowers and obtained affidavits of mailing of the notices. ALBPC submitted the affidavits of mailing in support of the motion thereby eradicating any potential triable issues of fact which could have been raised in opposition on these hot button issues.

ALBPC also thoroughly addressed and disproved each of the Borrowers’ remaining affirmative defenses and counterclaims

As a result, in opposition to the motion, the Borrowers abandoned all of their affirmative defenses and counterclaims, except for standing.

In support of their standing defense, the Borrowers argued that the assignor, Bank of America, N.A. (“BANA”), was not authorized to assign the note and mortgage to the foreclosing Plaintiff.

The original lender was Countrywide Bank, a Division of Treasury Bank, N.A. The note and mortgage were assigned to the foreclosing Plaintiff by endorsement on the note from Treasury Bank, N.A., physical delivery of the original note, and by assignment of mortgage from BANA.

In defeating the Borrowers’ challenge to the Plaintiff’s standing as assignee of the Note and Mortgage at the time of commencement of the action, ALBPC established that after the subject loan was consummated, Treasury Bank, N.A. was renamed Countrywide Bank, N.A.  Thereafter, Countrywide Bank, N.A. was renamed Countrywide Bank, FSB, which ultimately merged with BANA on April 27, 2009.

After establishing BANA’s merger with the original lender, ALBPC creatively argued that BANA was authorized to assign the Note and Mortgage to the foreclosing Plaintiff, since upon BANA’s merger with Countrywide: (i) BANA became the same business and corporate entity as the original lender, and (ii) the endorsement on the Note is considered as being given from BANA.

In support, ALBPC cited to Banking Law § 602 which provides, in relevant part, that “[a]t the time when a merger becomes effective…the receiving corporation shall be considered the same business and corporate entity as each corporation merged into it[, and]…any reference to a merged corporation in any…document, whether executed or taking effect before or after the merger, shall be considered a reference to the receiving corporation…”  Banking Law § 602.

ALBPC further argued that the validity of the pre-action written assignments were irrelevant, since the Plaintiff’s prima facie standing as holder of the note was established: (i) by annexing a copy of the note to the filed complaint and (ii) by the affidavit of the loan servicer (prepared by ALBPC and submitted in support of the motion) which provided the exact date of delivery of the original note to the Plaintiff, and, further, confirmed that Plaintiff was in possession of the original note at the time of commencement of the action.

Persuaded by ALBPC’s arguments, in a decision and order dated December 28, 2017, the Honorable Thomas F. Whelan, J.S.C. granted the motion in its entirety and, exceptionally, declared the issue of Plaintiff’s standing to be resolved in favor of the Plaintiff for all purposes of the action.

Jackie Halpern Weinstein, Esq. and Jessie D. Bonaros, Esq. of the Foreclosure Group at Adam Leitman Bailey, P.C. won this motion for the foreclosing Plaintiff.

Published Decision

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS