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Fremont Investment and Loan vs Roberta Haley Complaint

Fremont Investment and Loan vs Roberta Haley Complaint

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Published by Sampall
Fremont can't win a foreclosure when you know what they did.
Fremont can't win a foreclosure when you know what they did.

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Categories:Types, Business/Law
Published by: Sampall on Jun 10, 2010
Copyright:Attribution Non-commercial


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Short Form OrderNEW YORK SUPREME COURT - QUEENS COUNTYPresent: HONORABLE JAIME A. RIOS IA Part 8Justice FREMONT INVESTMENT AND LOANxIndexNumber 13559 2007Motion- against -Date May 29, 2008MotionROBERTA HALEY, et al.,Cal. Number 1xMotion Seq. No. 1The following papers numbered 1 to 13 read on this motion byplaintiff for summary judgment in its favor pursuant to CPLR 3212,to strike the answer of defendants Roberta Haley and William Haley,Jr., pursuant to CPLR 3211, for leave to appoint a referee toascertain and compute the amount due and owing plaintiff and toascertain whether the premises may be sold in parcels, for leave toamend the caption deleting “John Doe” as a party defendant, and todeem all defendants which have not appeared, or answered thecomplaint, to be in default in the action.PapersNumberedNotice of Motion - Affidavits - Exhibits......... 1-6Answering Affidavits - Exhibits.................. 7-11Reply Affidavits................................. 12-13Upon the foregoing papers it is ordered that the motion isresolved as follows.This motion was marked fully submitted on May 29, 2008. OnOctober 15, 2008, the motion was reassigned to this court, basedupon recusal by Justice Charles J. Markey. By order of this Court(Rios, J.) dated October 20, 2008, the motion was held in abeyancepending a settlement conference pursuant to CPLR 3408 (L 2008, ch472, § 3). The parties have failed to reach a settlement and themotion submitted on May 29, 2008 is now fully submitted forconsideration.Plaintiff commenced this action seeking foreclosure of amortgage given by defendants Roberta Haley and William Haley, Jr.
2on the real property known as 68-23 53rd Avenue, Maspeth, New Yorkto secure a note evidencing a loan, in the principal amount of$624,000.00, plus interest. Plaintiff alleges that defendantsHaley defaulted under the mortgage by failing to pay the monthlymortgage installment payment due on January 1, 2007, and that itelected to accelerate the mortgage debt and declare all sumssecured by the mortgage to be due and payable.Defendants Haley served an answer, denying the materialallegations of the complaint, asserting various affirmativedefenses and interposing various counterclaims seeking monetary andpunitive damages, rescission of the subject mortgage and note, andan award of attorneys’ fees. In substance, defendants Haley allegethat plaintiff engaged in predatory lending tactics, in violationof state and federal law, and fraudulently induced the Haleys toenter into an unconscionable mortgage transaction based upon aninflated and improper appraisal. Defendants Haley claim that theywere defrauded by plaintiff, a mortgage broker and others, intoaccepting a mortgage loan from plaintiff, and that plaintiff knewthe loan could not be repaid and that as an inevitable result, themortgage would fall into foreclosure. In its reply, plaintiffdenied the allegations set forth in each of the counterclaims ofdefendants Haley. Defendants New York City Environmental ControlBoard and New York City Transit Adjudication Bureau have defaultedin appearing and answering the complaint.Plaintiff has determined that there are no tenants residing atthe premises, and therefore, defendant “John Doe” is an unnecessaryparty defendant. That branch of the motion seeking leave to amendthe caption deleting defendant “John Doe” is granted.That branch of the motion seeking to fix the default inappearing or answering the complaint on the part of defendantsNew York City Environmental Control Board and New York City TransitAdjudication Bureau is granted.With respect to that branch of the motion for summaryjudgment, “[i]n order to establish its prima facie entitlement tosummary judgment in a foreclosure action, a plaintiff must submitthe mortgage and unpaid note, along with evidence of default (seeHoffman v Kraus, 260 AD2d 435, 436 [1999]; Mahopac Natl. Bank vBaisley, 244 AD2d 466, 467 [1997]). The burden then shifts to thedefendant to demonstrate ‘the existence of a triable issue of factas to a bona fide defense to the action, such as waiver, estoppel,bad faith, fraud, or oppressive or unconscionable conduct on thepart of the plaintiff’ (id. at 467; see Nassau Trust Co. v MontroseConcrete Prods. Corp., 56 NY2d 175, 183 [1982])” (U.S. Bank Nat.
3Assn. TR U/S 6/01/98 [Home Equity Loan Trust 1998-2] v Alvarez,49 AD3d 711 [2008]).Plaintiff has submitted, among other things, a copy of themortgage and note executed by defendants Haley, and affidavits ofMargie Kwiatanowski, an assistant vice-president of plaintiff, andJohn Kerr, a self-described “Limited Signing Officer” of GMACMORTGAGE LLC, the servicing agent for plaintiff, attesting to adefault in payment thereunder on January 1, 2007. Plaintiff,therefore, has established a prima facie case of entitlement tojudgment against defendants Haley as a matter of law (see EMCMortgage Corp. v Riverdale Associates, 291 AD2d 370 [2002];Republic Natl. Bank of N.Y. v Zito, 280 AD2d 657, 658 [2001]; seealso IMC Mtge. Co. v Griggs, 289 AD2d 294 [2001]; Paterson vRodney, 285 AD2d 453 [2001]). The burden shifts to defendantsHaley to raise a triable issue of fact regarding their defenses(see Barcov Holding Corp. v Bexin Realty Corp., 16 AD3d 282 [2005];EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2002];First Nationwide Bank, FSB v Goodman, 272 AD2d 433 [2000]).Defendants Haley oppose the motion arguing that plaintiff’sforeclosure claim and their affirmative defenses and counterclaimsare interwoven so as to preclude plaintiff’s entitlement to summaryjudgment. Defendants Haley offer their respective affidavits,indicating that they contacted a mortgage broker seeking torefinance their existing mortgage loan. They sought to pay off atotal of $100,000.00 in accumulated medical bills and credit carddebt. Defendants Haley state the mortgage broker informed themthat their house had been appraised for $780,000.00, and plaintiffwould approve a mortgage loan in the principal amount of$624,000.00. Defendants Haley indicate that they inquiredregarding the other terms of the loan, but did not receiveany additional information, and attended the loan’s closing onOctober 4, 2006, not knowing any term or condition, other than theprincipal amount. Defendants Haley aver they were unrepresented bycounsel at the closing. They further aver they were not providedwith copies of the loan documents which they signed at the closing,but were told by the attorney representing plaintiff that thecopies would arrive thereafter by mail. Defendants Haley statethey first learned of the actual amount of the monthly mortgageinstallment payment when they received, after closing, a noticefrom plaintiff indicating the amount was $5,700.00, and that suchamount would increase to $6,400.00 after three years, and adjustevery six months thereafter. Defendants Haley state that the newmonthly installment amount was almost twice their former one, andthat they were unable to make such payments, and did not knowinglyagree to pay them.

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