State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 14, 2016 520683
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GREEN PLANET SERVICING, LLC,
Respondent,
v MEMORANDUM AND ORDER
DAWN M. MARTIN,
Appellant.
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Calendar Date: May 26, 2016
Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.
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David B. Gilbert, Middletown, for appellant.
Peter T. Roach and Associates, PC, Syosset (Michael C.
Manniello of counsel), for respondent.
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Aarons, J.
Appeals (1) from an order of the Supreme Court (Elliott
III, J.), entered February 5, 2015 in Greene County, which, among
other things, granted plaintiff's motion for summary judgment,
and (2) from the judgment entered thereon.
Selene Finance commenced this mortgage foreclosure action
alleging that defendant defaulted on a note secured by a
mortgage. After joinder of issue, Selene Finance, moved for,
among other things, summary judgment striking defendant's answer
and appointing a referee to compute the total amount owed and to
substitute plaintiff, the current holder of the note and
mortgage, in its place in this action. In January 2015, Supreme
Court granted the motion. Plaintiff thereafter moved for a
judgment and foreclosure of sale of defendant's property. In May
2015, a judgment was entered in favor of plaintiff. Defendant
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appeals from both the order granting summary judgment and the
judgment entered thereon, contending that Supreme Court erred in
granting the summary judgment motion.
A plaintiff generally satisfies its summary judgment burden
in a mortgage foreclosure action by submitting a copy of the
mortgage, the unpaid note and evidence of the defendant's default
(see Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737, 738
[2015]; PHH Mtge. Corp. v Davis, 111 AD3d 1110, 1111 [2013], lv
dismissed 23 NY3d 940 [2014]). Where a defendant alleges that
the plaintiff failed to comply with a condition precedent set
forth in the loan documents to foreclose on a mortgage, as part
of its prima facie showing, the plaintiff must establish
compliance with such condition precedent (see Onewest Bank, FSB v
Smith, 135 AD3d 1063, 1065 [2016]; RBS Citizens, N.A. v Galperin,
135 AD3d 735, 736 [2016]).
Defendant argues, and we agree, that plaintiff failed to
show that it complied with certain federal regulations applicable
to her mortgage that was insured by the Federal Housing
Administration, a defense that defendant validly asserted in her
answer. As relevant here, it was incumbent upon plaintiff, prior
to commencing this action, to have a face-to-face meeting with
defendant, or, at the very least, make reasonable efforts to
arrange such a meeting before three full monthly installments due
on the mortgage became unpaid (see 24 CFR 203.604 [b]; 203.606
[a]). Plaintiff's submissions are wholly devoid of any proof,
explanation or argument showing that it met these federal
regulations or that it was exempt from complying with them (see
24 CFR 203.604 [c]; 203.606 [b]). We therefore conclude that
plaintiff failed to satisfy its burden on its motion and that the
summary judgment motion should have been denied regardless of the
sufficiency of defendant's opposition papers (see Onewest Bank,
FSB v Smith, 135 AD3d at 1065).
Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.
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ORDERED that the order and judgment are reversed, on the
law, with costs, and motion denied.
ENTER:
Robert D. Mayberger
Clerk of the Court