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SEFCU v. Allegra Holdings, LLC

Supreme Court of New York, Third Department

March 2, 2017

SEFCU, Respondent,
v.
ALLEGRA HOLDINGS, LLC, et al., Appellants, et al., Defendants.

          Calendar Date: January 20, 2017

          Chenel Myers, LLP, Albany (Michael P. Chenel of counsel), for appellants.

          Schiller, Knapp, Lefkowitz & Hertzel, LLP, Latham (Gary A. Lefkowitz of counsel), for respondent.

          Before: Garry, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          Aarons, J.

         Appeals (1) from an order of the Supreme Court (Buchanan, J.), entered October 2, 2014 in Schenectady County, which, among other things, granted plaintiff's motion for summary judgment, and (2) from a judgment of said court, entered April 2, 2015 in Schenectady County, which, among other things, granted plaintiff's motion for a judgment of foreclosure and sale.

         In September 2008, defendant Allegra Holdings, LLC executed a note in favor of plaintiff that was secured by a mortgage on real property located in the City of Schenectady, Schenectady County. Defendant Franca DiCrescenzo, the sole member of Allegra Holdings, personally guaranteed the note. Plaintiff subsequently commenced this foreclosure action alleging that Allegra Holdings and DiCrescenzo (hereinafter collectively referred to as defendants) failed to make timely payments due under the note. Following joinder of issue, plaintiff moved for summary judgment striking defendants' answer and for the appointment of a referee to compute the amount due. Defendants opposed the motion and cross-moved for summary judgment. In October 2014, Supreme Court, among other things, granted plaintiff's motion. A judgment of foreclosure and sale in plaintiff's favor was subsequently entered in April 2015. These appeals by defendants ensued. We affirm.

         As an initial matter, contrary to plaintiff's contention, the judicial sale of the subject property does not render defendants' appeal moot inasmuch as this Court's determination may impact defendants' right to restitution under CPLR 5523 (see Hudson City Sav. Inst. v Burton, 88 A.D.2d 728, 728 [1982]).

         Turning to the merits, in an action to foreclose on a mortgage, a plaintiff satisfies its summary judgment burden by submitting a copy of the mortgage, the unpaid note and evidence of the defendant's default in payments due (see Wells Fargo Bank, N.A. v Walker, 141 A.D.3d 986, 987 [2016]; Green Planet Servicing, LLC v Martin, 141 A.D.3d 892, 893 [2016]; Lasalle Bank Natl. Assn. v Kosarovich, 31 A.D.3d 904, 905 [2006]). We conclude that plaintiff supported its motion with the requisite proof to establish its entitlement to summary judgment and, therefore, the burden shifted to defendants to raise a question of fact as to a bona fide defense to foreclosure (see Nationstar Mtge., LLC v Alling, 141 A.D.3d 916, 918 [2016]; HSBC Bank USA v Merrill, 37 A.D.3d 899, 900 [2007], lv dismissed 8 N.Y.3d 967');">8 N.Y.3d 967 [2007]).

         Defendants' opposition rested on the premise that they made a valid tender of payment. In support of this proposition, DiCrescenzo averred in an affidavit that rental payments from the subject property were diverted through a receiver to plaintiff in order to cover the mortgage payments. Defendants, however, did not offer any evidence to substantiate either DiCrescenzo's self-serving statements that payments were made to plaintiff or the amount of such purported payments (see Charter One Bank, FSB v Leone, 45 A.D.3d 958, 959 [2007]). Likewise, the unsupported assertion by DiCrescenzo that she put the monthly mortgage payments that plaintiff rejected into escrow does not suffice to show a valid tender of payment. Here, once the debt was accelerated upon defendants' default, "plaintiff had no obligation to accept anything less than payment of the full amount owed under the mortgage" (Credit-Based Asset Servicing & Securitization v Castelli, 275 A.D.2d 542, 544 [2000]; see Bankers Trust Co. v Hoovis, 263 A.D.2d 937, 938-939 [1999]). Because defendants failed to demonstrate that they tendered payment of the full amount due, we conclude that Supreme Court properly granted plaintiff's motion for summary judgment and a judgment of foreclosure and sale in plaintiff's favor (see United Cos. Lending Corp. v Hingos, 283 A.D.2d 764, 765-766 [2001]; Hudson City Sav. Inst. v Burton, 88 A.D.2d at 728-729).

          Garry, J.P., Egan Jr., Devine and Clark, JJ., concur.

         ORDERED that the order and judgment are ...


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