Nationstar Mortgage LLC v. Hunte

Filing 26

OPINION & ORDER re: 16 MOTION for Summary Judgment and Judgment of Foreclosure and Sale filed by Nationstar Mortgage LLC, 22 MOTION NOTICE OF MOTION filed by Esther Hunte. For the foregoing reasons, Plaintiff's Motion for Summary Judgment is granted. The Court will not consider Defendant's request for sanctions, as Plaintiff's Motion was clearly not "fraudulent" or brought in bad faith as is alleged by Defendant. (Def.'s Opp'n, at unnumbered 3.) The Clerk of Court is respectfully directed to terminate the pending Motions, (see Dkt. Nos. 16, 22), enter judgment for Plaintiff, and close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/5/2018) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

NATIONSTAR MORTGAGE LLC,
Plaintiff,
v.

No. 16-CV-8708 (KMK)
OPINION & ORDER

ESTHER HUNTE,
Defendant.

Appearances:
Stephen J. Vargas, Esq.
Gross Polowy LLC
Westbury, NY
Counsel for Plaintiff
Esther Hunte
Newburgh, NY
Pro Se Defendant
KENNETH M. KARAS, District Judge:
Plaintiff Nationstar Mortgage LLC (“Plaintiff”) brought this Action seeking to foreclose
on a mortgage encumbering 42 Brooker Drive in Newburgh, New York 12550, together with the
land, buildings, and other improvements on the property (the “Property”). (See Compl. (Dkt. No.
1).) Before the Court is Plaintiff’s Motion for Summary Judgment against Defendant Esther
Hunte (“Defendant”). (See Dkt. No. 16.) 1 For the following reasons, the Motion is granted.

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Defendant purports to file a Motion To Dismiss the Complaint for lack of standing, (see
Dkt. No. 22), but in actuality that Motion is simply a component of Defendant’s opposition to
Plaintiff’s Motion for Summary Judgment.

I. Background
A. Factual Background
Plaintiff filed a Statement of Material Facts Pursuant to Local Rule 56.1, (see Dkt. No.
19), but Defendant did not file a response to that statement. Where a party opposing summary
judgment has failed to respond to a Rule 56.1 statement, that statement “will be deemed to be
admitted for purposes of the motion.” S.D.N.Y. Civ. R. 56.1(c); see also Giannullo v. City of
New York, 322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing party then fails to controvert a fact
so set forth in the moving party’s Rule 56.1 statement, that fact will be deemed admitted.”). The
Court is free, however, to disregard assertions for which “there are no citations or where the cited
materials do not support the factual assertions.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d
Cir. 2001) (alteration and internal quotation marks omitted). Plaintiff has not included any
citations in its Rule 56.1 statement, and thus the Court may not deem those facts unopposed for
the purposes of this Motion. Instead, as Plaintiff has failed to follow the procedures for drafting
a Rule 56.1 statement, the Court will have to conduct its own review of the record.
On October 28, 2005, Defendant executed a promissory note in the amount of
$337,840.00. (See Aff’n of Regularity Ex. C (“Certificate of Merit”), at unnumbered 3–6. (Dkt.
No. 17).) The note is endorsed in blank, (see Aff’n of Regularity Ex. A (“Robertson Aff.”) ¶ 2;
Certificate of Merit, at unnumbered 3–6), and Plaintiff “received the original Note on
09/11/2013,” and “continues to hold the original Note.” (Robertson Aff. ¶¶ 2, 4.) That same
day, Defendant executed and delivered a mortgage on the Property in order to secure the
promissory note. (See Certificate of Merit, at unnumbered 14–37.) The mortgage was
subsequently assigned to Mortgage Electronic Registration Systems, Inc. as the nominee for
Lehman Brothers Bank, FSB. (See id.) The mortgage was later assigned to Aurora Loan

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Services on November 2, 2010, (see id. at unnumbered 40), and then reassigned to Plaintiff on
June 21, 2012, (see id. at unnumbered 42). The mortgage was subsequently modified by a Loan
Modification Agreement that became effective on May 1, 2015. (See id. at unnumbered 43–50.)
Defendant has not made payments on the note since March 1, 2016. (See Robertson Aff.
¶ 5.) Plaintiff affirms that on or about July 7, 2016, a 90-day pre-foreclosure notice was sent via
regular and certified mail to Defendant at the Property. (See id. ¶ 8; see also Aff’n of Regularity
Ex. F.) Pursuant to New York Real Property Actions and Proceedings Law § 1306, Plaintiff
filed notice of the pre-foreclosure notice with the Superintendent of Financial Services within 3
days of mailing the notice to Defendant. (See Aff’n of Regularity ¶ 5; Robertson Aff. ¶ 8.) On
or about July 7, 2016, pursuant to the terms of the mortgage, a notice of default was mailed to
Defendant, (see Robertson Aff. ¶ 7; see also Aff’n of Regularity Ex. E), but unlike the 90-day
pre-foreclosure notice, Plaintiff has not included any certified mailing receipt with respect to the
notice of default. Despite these notices, Defendant has failed to cure the default. (See Robertson
Aff. ¶ 9.)
According to Plaintiff, the total amount due—inclusive of taxes, interest, and fees—is
$484,591.51. (See Robertson Aff. ¶ 5.)
B. Procedural History
Plaintiff filed the Complaint, annexing the Certificate of Merit, on November 9, 2016.
(See Compl.) Plaintiff thereafter filed a Notice of Pendency of Action on November 15, 2016.
(See Dkt. No. 6.) Plaintiff served Defendant with the Summons and Complaint on November 23,
2016. (See Dkt. No. 7.) Although the docket entry indicated that Defendant’s Answer was due
on January 22, 2017, the Answer was, in reality, due on December 14, 2016. See Fed. R. Civ. P.
12(a)(1)(A). On December 16, 2016, after Defendant did not file an Answer, Plaintiff requested

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that the Clerk of Court issue a certificate of default. (See Dkt. No. 8.) The Clerk of Court issued
the certificate the same day. (See Dkt. No. 9.)
On December 30, 2016, Defendant, proceeding pro se, filed her Answer. (See Answer
(Dkt. No. 10).) The attached affidavit indicated that it was served on Plaintiff on December 29,
2016. (See id.) On January 10, 2017, Plaintiff filed a “Notice of Return and Rejection of
Answer,” wherein it asserted that because the Answer was not timely, it was rejecting and
returning the Answer. (See Dkt. No. 11.) Plaintiff added that, “[a]s a courtesy,” it would treat
the Answer as a “limited notice of appearance” and send Defendant a copy of the documents
appended to the Complaint. (Id.) In response, Defendant filed a Motion for an extension of the
time to Answer on January 19, 2017. (See Dkt. No. 12.) In light of Defendant’s pro se status
and the misleading docket entry, the Court granted Defendant’s Motion nunc pro tunc and
deemed timely her Answer filed on December 30, 2016. (See Order (Dkt. No. 13).)
On March 21, 2017, Plaintiff requested leave to file a motion for summary judgment.
(See Letter from Stephen J. Vargas, Esq. to Court (March 21, 2017) (Dkt. No. 14).) The Court
granted Plaintiff’s request and issued a briefing schedule. (See Mot. Scheduling Order (Dkt. No.
15).) Plaintiff thereafter filed its Motion for Summary Judgment and accompanying papers on
April 27, 2017. (See Dkt. Nos. 16–21.) Defendant filed her opposition to the Motion on May
25, 2017, (see Dkt. Nos. 22–23), and Plaintiff filed its Reply on June 14, 2017, (see Dkt. No. 24).
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.

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2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper
Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014)
(same). “It is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v.
Marchinkowski, 137 F. Supp. 3d 495, 521 (S.D.N.Y. 2015) (same).
“However, when the burden of proof at trial would fall on the nonmoving party, it
ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an
essential element of the nonmovant’s claim,” in which case “the nonmoving party must come
forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to
avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114,
123 (2d Cir. 2013) (alteration and internal quotation marks omitted). Further, “[t]o survive a
[summary judgment] motion . . . , [a nonmovant] need[s] to create more than a ‘metaphysical’
possibility that his allegations were correct; he need[s] to ‘come forward with specific facts
showing that there is a genuine issue for trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d
Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the
pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014)
(internal quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)
(“When a motion for summary judgment is properly supported by documents or other

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evidentiary materials, the party opposing summary judgment may not merely rest on the
allegations or denials of his pleading . . . .”).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At this stage,
“[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any
factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted). Thus, a
court’s goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm.
Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986)).
When ruling on a motion for summary judgment, a district court should consider “only
evidence that would be admissible at trial.” Nora Beverages, Inc. v. Perrier Grp. of Am., Inc.,
164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish facts, the
statements ‘must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant . . . is competent to testify on the matters stated.’” DiStiso v.
Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4)); see also Sellers v.
M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (“Rule 56 requires a motion for
summary judgment to be supported with affidavits based on personal knowledge . . . .”); Baity v.
Kralik, 51 F. Supp. 3d 414, 419 (S.D.N.Y. 2014) (disregarding “statements not based on [the]
[p]laintiff’s personal knowledge”); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, at *5
(S.D.N.Y. Jan. 24, 2007) (“The test for admissibility is whether a reasonable trier of fact could
believe the witness had personal knowledge.” (internal quotation marks omitted)).

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B. Analysis
A plaintiff mortgagee in a foreclosure action establishes a prima facie case “by presenting
a note, a mortgage, and proof of default.” E. Sav. Bank, FSB v. Evancie, No. 13-CV-878, 2014
WL 1515643, at *4 (E.D.N.Y. Apr. 18, 2014); see also U.S. Bank, N.A. v. Squadron VCD, LLC,
No. 10-CV-5484, 2011 WL 4582484, at *4 (S.D.N.Y. Oct. 3, 2011) (“Under New York law,
summary judgment in a mortgage foreclosure action is appropriate where the note and mortgage
are produced to the [c]ourt along with proof that the mortgagor has failed to make payments due
under the note.”), aff’d, 504 F. App’x 30 (2d Cir. 2012). After establishing a prima facie case,
the plaintiff has a presumptive right to foreclose, “which can only be overcome by an affirmative
showing by the mortgagor” that there is a triable issue of fact with respect to the merits of any
defenses or counterclaims. Squadron, 2011 WL 4582484, at *4; see also Builders Bank v. Beach
116-23 LLC, No. 09-CV-2220, 2011 WL 2672567, at *5 (E.D.N.Y. Apr. 15, 2011) (holding that
where the defendants had not “contest[ed] the facts” giving rise to a prima facie case, the
plaintiff “therefore ha[d] a presumptive right to collect which could only be overcome by an
affirmative showing from the defendants” (alterations and internal quotation marks omitted)),
adopted by 2011 WL 2680327 (E.D.N.Y. July 8, 2011).
1. Prima Facie Case
There is no dispute that Plaintiff has established a prima facie case. Plaintiff has
produced the note and mortgage, (see Certificate of Merit, at unnumbered 3–37), and has offered
an affidavit indicating that Defendant has been in default of her loan obligations since March 1,
2016, (see Robertson Aff. ¶ 5). Defendant has not offered an affidavit or other evidence to refute
this, and has not disputed that Plaintiff has produced adequate evidence of default. (See Decl. in

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Opp’n to Pl.’s Mot. for Summ. J. (“Def.’s Opp’n”) at unnumbered 1–3 (Dkt. No. 23).) Plaintiff
has therefore established a prima facie case and is presumptively entitled to foreclosure.
2. Standing
Defendant argues that the Motion should be denied because Plaintiff lacks standing
because Plaintiff’s statement that, “the note was delivered to Nation[s]tar,” is ambiguous as to
whether or not Plaintiff was actually “in possession of the note at the time the action was
commenced.” (See id. at unnumbered 1.) However, this defense is without merit and has no
basis in the evidentiary record before the Court.
A plaintiff seeking foreclosure on a mortgage has standing “where it is both the holder or
assignee of the subject mortgage and the holder or assignee of the underlying note at the time the
action is commenced.” Assets Recovery Ctr. Investments, LLC v. Smith, No. 13-CV-253, 2014
WL 3525011, at *5 (E.D.N.Y. Mar. 12, 2014) (internal quotation marks omitted), adopted by
2014 WL 3528460 (E.D.N.Y. July 15, 2014). “Notably, either a written assignment of the
underlying note or the physical delivery of the note prior to the commencement of the
foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt
as an inseparable incident.” Onewest Bank, N.A. v. Guerrero, No. 14-CV-3754, 2016 WL
3453457, at *3 (S.D.N.Y. June 17, 2016) (alterations and internal quotation marks omitted); see
also CIT Bank, N.A. v. Escobar, No. 16-CV-3722, 2017 WL 3614456, at *7 (E.D.N.Y. June 16,
2017) (“[T]he holder is a person who is in possession of an instrument issued or indorsed to
him.” (alterations and internal quotation marks omitted)), adopted by 2017 WL 3634604
(E.D.N.Y. Aug. 18, 2017).
In addition to attaching a clear chain of assignment linking Plaintiff to the originator of
the mortgage, Plaintiff has also shown that prior to the commencement of this litigation it took

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physical possession of the original note on September 11, 2013 and has maintained possession
throughout the prosecution of this action. (See Robertson Aff. ¶¶ 2–4; Certificate of Merit, at
unnumbered 40–50.) The submission of the assignments, accompanied by sworn affidavit
regarding delivery and possession of the note, is on its own sufficient to “establish[] that
[Plaintiff] had physical possession of the note prior to commencement of this action.” One West
Bank, N.A. v. Melina, No. 14-CV-5290, 2015 WL 5098635, at *4 (E.D.N.Y. Aug. 31, 2015),
aff'd, 827 F.3d 214 (2d Cir. 2016). “Moreover, Plaintiff has demonstrated standing by annexing
and affixing a copy of the Note to its Certificate of Merit which was filed at the commencement
of the action.” CIT Bank, N.A., 2017 WL 3614456, at *7. Accordingly, Plaintiff has
demonstrated that it has standing to commence this Action and proceed with the foreclosure.
3. Refusal to Modify
Defendant asserts that Plaintiff exercised “bad faith” in failing to offer Defendant a loan
modification. Specifically, Defendant argues that Plaintiff acted in bad faith because it had
“promised a modification of the terms and has been negligent in properly modifying the loan.”
(Def.’s Opp’n, at unnumbered 2.) This argument similarly has no merit.
Under New York law, Plaintiff “was under no obligation to modify the terms of
[Defendant’s] mortgage.” Kilgore v. Ocwen Loan Servicing, LLC, 89 F. Supp. 3d 526, 533
(E.D.N.Y. 2015); see also Miller v. HSBC Bank U.S.A., N.A., No. 13-CV-7500, 2015 WL
585589, at *3 (S.D.N.Y. Feb. 11, 2015) (collecting cases). Defendant argues that Plaintiff
“promised” the loan modification, an application for which she claims was sent to Plaintiff on
December 27, 2016. (Def.’s Opp’n, at unnumbered 2.) Moreover, Defendant claims that there
“had been ongoing communication on this modification between [the Parties].” (Id.) Yet,
Defendant has not provided a copy of such an application and there is generally no evidence in

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the record, outside of Defendant’s conclusory statements in her opposition that such an
application exists. In any event, if such an application does exist and has been reviewed by
Plaintiff, that by itself is irrelevant. “[E]ngaging in discussions about possible modifications of a
loan agreement or modifying the terms in the past does not constitute a course of dealing
requiring the lender to provide an offer on better terms sought by the borrower.” Eastern
Savings Bank v. Aufiero, No. 14-CV-0256, 2016 WL 1056998, at *8 (E.D.N.Y. Mar. 14, 2016).
Unlike the prior loan modification, effective May 1, 2015, here there appears to be no binding
loan modification agreement, nor has Defendant presented any evidence of an obligation on the
part of Plaintiff to provide her with such a modification. Thus, the claim of “bad faith” based
upon any failure to modify fails.2

Defendant’s argument that Plaintiff has violated Regulation X of the Real Estate
Settlement Procedures Act (“RESPA”), 12 C.F.R. § 1024.41, by failing to review the
modification application similarly fails. Defendant proffers no information identifying any loan
modification application besides the date of such an application, and does not allege
nonconclusory facts demonstrating any breach of the requirements of the regulation. (See Def.’s
Opp’n, at unnumbered 2–3.) Accordingly, Defendant has failed to show any dispute of fact that
would render the foreclosure invalid.
2

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III. Conclusion
For the foregoing reasons, Plaintiffs Motion for Summary Judgment is granted. The
Court will not consider Defendant's request for sanctions, as Plaintiffs Motion was clearly not
"fraudulent" or brought in bad faith as is alleged by Defendant. (Def.'s Opp'n, at unnumbered
3.) The Clerk of Court is respectfully directed to terminate the pending Motions, (see Dkt. Nos.
16, 22), enter judgment for Plaintiff, and close this case.
SO ORDERED.
DATED:

MarchS, 2018

White Plains, New York

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