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U.S. Bank, N.A v. Annith Byrd

February 22, 2012

U.S. BANK, N.A.,
PLAINTIFF,
v.
ANNITH BYRD, WAYNE BYRD, HARVESTIME TABERNACLE, INC., CARMEN FAIRCLOUGH, TRAVELENE NECKLES, JACQUELINE SIMPSON, RUPERT WYNTER, MELVYN DUNKLEY, AND NORRIS WYNTER, DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

Plaintiff U.S. Bank, N.A. ("plaintiff") seeks to foreclose on a $1,575,000 mortgage secured by a commercial property located at 501-509 East 78th Street in Brooklyn, New York. This court has subject-matter jurisdiction in this action pursuant to 28 U.S.C. § 1332. Pending before the court is plaintiff's motion for summary judgment on its claim for foreclosure and application for attorneys' fees and costs.

For the reasons set forth below, the court: (1) grants summary judgment to plaintiff against the remaining defendants, Annith Byrd, Wayne Byrd, Harvestime Tabernacle, Inc., Carmen Fairclough, Travelene Neckles, Jacqueline Simpson, Rupert Wynter, Melvyn Dunkley, and Norris Wynter; (2) orders the foreclosure and sale of the property located at 501-509 East 78th Street in Brooklyn, New York*fn1 ; (3) awards plaintiff a total of $19,858.00 in attorneys' fees and $1,475.84 in costs up to and including plaintiff's motion for summary judgment; and (4) directs plaintiff to submit, by February 29, 2012, supporting documentation and calculations to enable the court to assess the amount due and outstanding under the Note and Mortgage, and orders that defendants who wish to respond shall do so by March 7, 2012.

BACKGROUND

The following facts are undisputed and viewed in the light most favorable to the defendants.*fn2 The real property at issue in this case is located at 501-509 East 78th Street in Brooklyn, New York ("the Property"). (ECF No. 53, Plaintiff's Statement of Undisputed Material Facts ("Pl.'s 56.1") ¶ 4.*fn3 ) The Property is also known as "1567 Ralph Avenue." (Id.)

On February 9, 2007, defendant Annith Byrd executed a promissory note (the "Note"), promising to pay Greenpoint Mortgage Funding Inc. ("Greenpoint") a principal sum of $1,575,000. (Id. ¶¶ 1-2.) On the same date, defendants Annith and Wayne Byrd (the "Byrd defendants") executed and delivered to Greenpoint an assignment of rents, security agreement, and commercial mortgage (collectively, the "Mortgage") on the Property as security for the loan. (Id. ¶ 3.) The Mortgage, which is a lien on the Property, was recorded in the Office of the Register of the City of New York, County of Kings (the "Register's Office"), on November 30, 2007. (Id. ¶¶ 4-5.)

On February 28, 2008, Greenpoint assigned the Note, Mortgage, and all related loan documents to Park National Bank ("Park National"). (Id. ¶ 8.) The assignment to Park National was recorded in the Register's Office on August 5, 2008. (Id. ¶ 9.) On July 20, 2010, the Federal Deposit Insurance Corporation (FDIC), as receiver for Park National, assigned the Note and Mortgage to plaintiff. (Id. ¶ 11.) The assignment to plaintiff was recorded in the Register's Office on August 12, 2010. (Id. ¶ 12.) As such, plaintiff is the holder of the Note, the Mortgage, and all the other related loan documents. (Id. ¶ 14.)

The Byrd defendants failed to make the payment due under the Note and Mortgage on April 1, 2010, and have not made any payments toward the amounts due under the Note and Mortgage since that time. (Id. ¶¶ 15-16.) On July 23, 2010, plaintiff filed the instant foreclosure action. (See ECF No. 1, Complaint ("Compl."). On April 12, 2011, plaintiff filed an amended complaint against the Byrd defendants; Harvestime Tabernacle, Inc. ("Harvestime"), a church that is located on the Property; and Carmen Fairclough, Travelene Neckles, Jacqueline Simpson, Rupert Wynter, Melvyn Dunkley, and Norris Wynter (collectively, "defendants"), a group of individuals whom plaintiff believes are in charge of Harvestime. (See ECF No. 29 Amended Complaint ("Am. Compl.") ¶¶ 1-13.) The Amended Complaint also named as defendants Dr. Joel Brick, Dr. Joshua Gindea, Bonnii Gargano, G.B.W. Glenwood Dental Administrators, Inc., and the Environmental Control Board of The City of New York, although plaintiff voluntarily dismissed its claims as to each of those defendants before moving for summary judgment. (See ECF Nos. 40, 41, 43, 46, Notices and Orders of Voluntary Dismissal.)

DISCUSSION

I.Summary Judgment Standard

Summary judgment is appropriate where "there is no genuine issue as to any material fact." Miner v. Clinton Cnty., 541 F.3d 464, 471 (2d Cir. 2008) (quoting Fed. R. Civ. P. 56(a)). "A fact is material when it might affect the outcome of the suit under governing law." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007).

Thus, the court must determine whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When ruling on a summary judgment motion, the district court "must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775 780 (2d Cir. 2003).

In a motion for summary judgment, the moving party carries the initial burden of demonstrating an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party then "must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586--87 (1986)) (internal quotation marks omitted). To defeat a summary judgment motion, there must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249.

II.Defendants' Opposition

In opposition to plaintiff's motion, defendants do not dispute that the Byrd defendants executed the Note and Mortgage and have been "incapable of making payments on the loan as of April 1, 2010." (ECF No. 58, Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment ("Defs.' Opp'n") at 4.*fn4 ) Nevertheless, they urge the court to deny plaintiff's motion for summary judgment because "there exists a triable issue of fact as to whether the mortgage is invalid pursuant to New York Religious Corporations Law Section 12," which requires prior court approval for the mortgage of any real property of a religious corporation. (Id. (citing N.Y. Relig. Corp. Law § 12(1)).)

Defendants do not dispute that defendant Harvestime is not named in and is not a party to either the Note or Mortgage as a mortgagor or borrower, and defendants concede that Greenpoint "offer[ed] the mortgage to me [Wayne Byrd] and my wife [Annith Byrd] specifically." (ECF No. 58-1, Declaration of Wayne Byrd ("Byrd Decl.") ¶ 10.) Defendants assert, however, that before Greenpoint issued the Note and Mortgage to the Byrd defendants, Greenpoint requested, reviewed and relied upon Harvestime's financial documents because Greenpoint was aware that the Byrds' financial means were inadequate to cover the monthly payments due under the Note and Mortgage. (Defs.' Mem. at 6-7; Byrd Decl. ¶¶ 4-11.) Consequently, defendants argue, (1) Harvestime is in fact a party to the Mortgage; (2) the Mortgage involves real property owned by a religious corporation and is therefore subject to New York Religious Corporations Law Section 12(1); and (3) there is a genuine issue of material fact regarding the validity of the Mortgage because the mortgage was not previously approved by a court as required by New York Religious Corporations Law Section 12(1). (Defs.' Mem. at 6-7.)

Defendants' argument fails because it presupposes that Harvestime was a religious corporation when the Mortgage was executed, but defendants provide no admissible evidence to support that assertion.*fn5 In the absence of any evidence of Harvestime's putative status as a religious corporation, defendants lack a basis to claim that the Mortgage could be invalid for failure to comply with New York Religious Corporations Law Section 12(1).

III.Defendants' Affirmative Defenses

The court finds unavailing all of defendants' affirmative defenses, which are set forth in their Answer to the Amended Complaint (see ECF No. 32 ("Answer")). Defendants assert as a first affirmative defense that plaintiff lacks standing to bring this action because plaintiff "was not the legal owner of the Note and/or Mortgage at the time it commenced this action." (Id. ΒΆ 4.) The undisputed facts demonstrate that defendants' affirmative defense is not supported and, indeed, is contradicted by the undisputed evidence in the record. The court has reviewed the relevant assignment and recording documents and finds that plaintiff became the owner ...


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