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PENNYMAC HOLDINGS, LLC v. TOMANELLI, 139 A.D.3d 688 (2016)

Court: Supreme Court of New York Number: innyco20160504370 Visitors: 6
Filed: May 04, 2016
Latest Update: May 04, 2016
Summary: Ordered that the appeal from the order dated September 10, 2015, is dismissed, as that order was superseded by the amended order dated September 23, 2015; and it is further, Ordered that the amended order is affirmed insofar as appealed from; and it is further, Ordered that one bill of costs is awarded to the plaintiff. In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evide
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Ordered that the appeal from the order dated September 10, 2015, is dismissed, as that order was superseded by the amended order dated September 23, 2015; and it is further,

Ordered that the amended order is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default (see Washington Mut. Bank v Schenk, 112 A.D.3d 615, 616 [2013]). Here, the plaintiff sustained its burden of demonstrating its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the unpaid note, and the affidavit of Clifford Giles, a "Default Specialist III" of the plaintiff's loan servicer, attesting to the default of the defendant Christopher Tomanelli, also known as Christopher M. Tomanelli (hereinafter the defendant) (see HSBC Bank USA, N.A. v Spitzer, 131 A.D.3d 1206, 1207 [2015]; Deutsche Bank Natl. Trust Co. v Monica, 131 A.D.3d 737, 738 [2015]; HSBC Bank USA, N.A. v Sage, 112 A.D.3d 1126, 1127 [2013]; see also Wells Fargo Bank, N.A. v Arias, 121 A.D.3d 973 [2014]).

In opposition, the defendant failed to raise a triable issue of fact. Contrary to the defendant's contention, the notice of default sent to him by the plaintiff substantially complied with the terms of the mortgage (see Wachovia Bank, N.A. v Carcano, 106 A.D.3d 724, 725 [2013]; Indymac Bank, F.S.B. v Kamen, 68 A.D.3d 931 [2009]).

Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and to appoint a referee to compute the amount due to the plaintiff.

Source:  Leagle

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