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Bank of N.Y. Mellon v. Samuels

Supreme Court, Orange County

February 6, 2017

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,
v.
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.

          Pl counsel Rosicki, Rosicki & Associates, P.C.

          Def Counsel Simon Haysom, Esq.

          Maria S. Vazquez-Doles, J.

         The following papers numbered 1 - 15 were read on Plaintiff's motion for summary judgment, to appoint a referee, and to amend the caption:

         Notice 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

         Response of Simon Haysom, Esq., dated 11/7/16/Attachment 13 - 14

         Reply Affirmation of David Mushett, Esq., dated11/14/16 15

         PROCEDURAL HISTORY

         This 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.

         Plaintiff 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.

         ANALYSIS

         Defendant 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.

         New 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 ...

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