The Bank of New York Mellon fka THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWABS, INC., ASSET BACKED CERTIFICATES, SERIES 2004-12, PLAINTIFF,
Jae Samuels; DAVID SAMUELS; DISCOVER BANK; MIDLAND FUNDING, LLC; PORTFOLIO RECOVERY ASSOCIATES, LLC A/P/O CHASE BANK USA, N.A. HERITAGE BANK ONE; RAZOR CAPITAL LLC A/P/O HSBC; 'JOHN DOES' and 'JANE DOES', DEFENDANTS.
counsel Rosicki, Rosicki & Associates, P.C.
Counsel Simon Haysom, Esq.
S. Vazquez-Doles, J.
following papers numbered 1 - 15 were read on Plaintiff's
motion for summary judgment, to appoint a referee, and to
amend the caption:
of Motion/Affirmation of Richard Fay, Esq., dated
10/25/16/Certificate of Merit of Tina Genovese, Esq., dated
12/28/15/Exhibits A - I 1 - 12
of Simon Haysom, Esq., dated 11/7/16/Attachment 13 - 14
Affirmation of David Mushett, Esq., dated11/14/16 15
action to foreclosure on a residential property mortgage was
commenced by the filing of a Summons and Complaint on
December 31, 2015. The property is located at 1476 Route 6,
Port Jervis, NY 12771, and is also known as 1476 U.S. Highway
6, Greenville, NY 12771. Issue was joined by the service of
an Answer on or about January 26, 2016 and Amended on
February 16, 2016. The parties attended several conferences
in the foreclosure settlement part but were unable to
negotiate a settlement. The matter was transferred to this
IAS part on or about April 1, 2016.
now seeks summary judgment of foreclosure, an appointment of
a referee to compute, and an amendment of the caption to
strike all fictitious persons as none currently occupy the
home. Defendants Jae and David Samuels oppose the motion on
the grounds that the mortgage tax was not paid and therefore
the note and mortgage is unenforceable under New York Tax Law
§258. The additional Defendants have failed to appear.
argues that Plaintiff's failure to pay the mortgage
recording tax on the two modifications of the original
mortgage, renders the note and mortgage unenforceable.
Defendant cites no statute or case law to support this
argument. Plaintiff replies and cites several cases which
clearly hold otherwise.
York Tax Law §258 states in pertinent part that:
"No mortgage of real property shall be recorded by any
county clerk or register, unless there shall be paid the
taxes imposed by and as in this article provided. No mortgage
of real property which is subject to the taxes imposed by
this article shall be released, discharged of record or
received in evidence in any action or proceeding, nor
shall any assignment of or agreement extending any such
mortgage be recorded unless the taxes imposed thereon by this