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CIT Bank, N.A. v. Portfolio Recovery Associates, LLC

United States District Court, S.D. New York

June 28, 2017

CIT BANK, N.A., Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC, MARIA GARTEN, Defendants.

          John J. Ricciardi, Esq. Jack L. Glasser, Esq. Lawrence, NY Counsel for Plaintiff

          Nicholas E. Perciballi, Esq. Ross Eisenberg, Esq. Stephen J. Vargas, Esq. Dennis Jose, Esq. Gross Polowy LLC Westbury, NY Counsel for Plaintiff

          Peter Spino, Jr., Esq. Law of Office of Peter Spino, Jr., Esq. White Plains, NY Counsel for Defendant Maria Garten

          OPINION & ORDER

          KENNETH M. KARAS, District Judge:

         Plaintiff CIT Bank, N.A., brought this Action seeking to foreclose on a mortgage encumbering 3 Apple Orchard Lane in Bedford, New York 10506, together with the land, buildings, and other improvements on the property (the “Property”). (Dkt. No. 1.) Before the Court are Plaintiff's Motion for Summary Judgment against Maria Garten (“Garten”) and a Default Judgment against Portfolio Recovery Associates, LLC (“Portfolio”). (See Dkt. No. 34.) While Garten has answered and has opposed the pending Motion, Portfolio has not answered the Complaint or otherwise participated in this Action. For the following reasons, the Motion is granted in part and denied in part.

         I. Background

         A. Factual Background

         Although Plaintiff filed a Statement of Material Facts Pursuant to Local Rule 56.1, (see Dkt. No. 37), Garten did not file a response to that statement. Where a party opposing summary judgment has failed to respond to a Rule 56.1 statement, that statement “will be deemed to be admitted for purposes of the motion.” L.R. Civ. P. 56.1(c); see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.”). The Court is free, however, to disregard assertions for which “there are no citations or where the cited materials do not support the factual assertions.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (alteration and internal quotation marks omitted). Plaintiff has not included any citations in its Rule 56.1 statement, and thus the Court may not deem those facts unopposed for the purposes of this Motion. Instead, as Plaintiff has failed to follow the procedures for drafting a Rule 56.1 statement, the Court will have to conduct its own review of the record.

         On June 15, 2007, Garten executed a promissory note in the amount of $810, 000.00. (See Aff'n of Regularity Ex. A (“Edwards Aff.”) ¶ 3 (Dkt. No. 35); see also Aff'n of Regularity Ex. E (“Certificate of Merit”), at unnumbered 3-5.) The note is endorsed in blank, (see Certificate of Merit, at unnumbered 3-6), and Plaintiff claims it had “possession of the [p]romissory [n]ote on 6/29/07, ” (Edwards Aff. ¶ 4). Also on June 15, 2007, Garten executed and delivered a mortgage on the Property in order to secure the promissory note. (See Edwards Aff. ¶ 5; see also Certificate of Merit, at unnumbered 9-13.) The mortgage and note were subsequently consolidated and assigned to Mortgage Electronic Registration Systems, Inc. as the nominee for IndyMac Bank, FSB. (See Edwards Aff. ¶ 5; see also Certificate of Merit, at unnumbered 14.) The consolidated mortgage was assigned to Plaintiff on September 11, 2015. (See Certificate of Merit, at unnumbered 41-42.)[1]

         Garten has not made payments on the note since June 1, 2010. (See Edwards Aff. ¶ 6.) Plaintiff affirms that on or about July 20, 2015, a 90-day pre-foreclosure notice was sent via first class and certified mail to Garten at the Property. (See Id. ¶ 7; see also Aff'n of Regularity Ex. B; Aff'n of Regularity Ex. H.) Pursuant to New York Real Property Actions and Proceedings Law § 1306, Plaintiff filed notice of the pre-foreclosure notice with the Superintendent of Financial Services within 3 days of mailing the notice to Garten. (See Edwards Aff. ¶ 8; see also Aff'n of Regularity Ex. I.) On or about July 20, 2015, pursuant to the terms of the mortgage, a notice of default was mailed to Garten, (see Edwards Aff. ¶ 9; see also Aff'n of Regularity Ex. C; Aff'n of Regularity Ex. G), but unlike the 90-day pre-foreclosure notice, Plaintiff has not included any certified mailing receipt with respect to the notice of default.

         According to Plaintiff, the total amount due-inclusive of taxes, interest, and fees-is $1, 174, 198.52. (See Edwards Aff. ¶ 10.)

         B. Procedural History

         Plaintiff filed the Complaint on November 3, 2015. (See Compl.) Garten filed her Answer on January 4, 2016. (See Dkt. No. 10.) Portfolio has not appeared in this Action. On March 16, 2016, Plaintiff requested leave to file a motion for summary judgment. (See Dkt. No. 13.) Before the Court held a conference regarding Plaintiff's application, Plaintiff requested and obtained a certificate of default as to Portfolio. (See Dkt. Nos. 19-20.) On April 26, 2016, the Court held a conference wherein it set a schedule for discovery. (See Dkt. (minute entry for Apr. 26, 2016); see also Order (Dkt. No. 23).) Following discovery, Plaintiff again requested leave to file a motion for summary judgment, (see Dkt. No. 29), which Garten did not oppose, (see Dkt. No. 31). The Court held a conference on September 16, 2016, at which none of Defendants appeared, (see Dkt. (minute entry for Sept. 16, 2016)), and thereafter set a briefing schedule, (see Dkt. No. 32).

         Plaintiff filed its Motion for Summary Judgment and accompanying papers on November 4, 2016. (See Dkt. Nos. 34-38.) In its motion papers, Plaintiff also requested that the Court enter default judgment against Portfolio. (See Dkt. No. 34.) Garten filed an opposition to the Motions on December 14, 2016, ...


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