Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Agility Funding, LLC v. Wilmington Trust National Association

Supreme Court, Warren County

October 11, 2017

Agility Funding, LLC, Plaintiff,
v.
Wilmington Trust National Association, as Trustee for MFRA Trust 2015-1, THE BOARD OF MANAGERS OF CRANDALL SQUARE CONDOMINIUM, and "JOHN DOE NO. 1" through "JOHN DOE NO. 15", the last fifteen names being fictitious persons or parties unknown to plaintiff, the persons of parties intended being the tenants, occupants, persons or corporation, if any, having or claiming an interest in or lien upon the premises described in the Complaint, Defendants.

          Nolan & Heller, LLP, Albany (Justin A. Heller, of counsel), for plaintiff.

          Dorf Nelson, LLP, Rye (Jonathan B. Nelson and Jessica J. Kastner, of counsel), for Wilmington Trust National Association, not in its individual capacity but solely as Trustee for MFRA Trust 2015-1, defendant.

          Martin D. Auffredou, J.

         This is an action to foreclose a mortgage on real property known as 93 Maple Avenue, Unit 303, Glens Falls, Warren County, New York ("the subject property"). The subject property is one unit in a condominium building known as Canfield Square Condominiums. In the complaint, plaintiff alleges that on or about August 18, 2006, non-party Parkside Development Partners, LLC ("Parkside") executed a note in favor of plaintiff, in the principal amount of $250, 000.00 ("the note"). To secure the note, on the same date, Parkside gave plaintiff a mortgage ("the mortgage"). Plaintiff further alleges that by Mortgage Spreader and Consolidation Agreement ("the spreader agreement") between plaintiff, Parkside and non-party Canfield Properties, LLC ("Canfield"), dated December 19, 2006, the lien of the mortgage was extended and spread to cover certain real property owned by Canfield, including the subject property, along with other parcels. Plaintiff contends that the mortgage and the spreader agreement together constitute a valid and existing first mortgage lien on the subject property. Plaintiff asserts that defendant Wilmington Trust National Association, as Trustee for MFRA Trust 2015-1, is the record owner of the subject property and took title to the same subject to plaintiff's mortgage. Plaintiff alleges that the note remains unpaid and the note and mortgage are in default by virtue of, inter alia, the conveyance of the subject property to defendant. Plaintiff claims that defendant Wilmington Trust, National Association, as Trustee for MFRA Trust 2015-1, is named as a party inasmuch as its title to and interest in the subject property is subject and subordinate to the lien of plaintiff's mortgage, in order to bar defendant from any claimed right, title or interest in and to the subject property.

         Plaintiff commenced the instant action on December 7, 2016, by the filing of a notice of pendency, summons and complaint. According to an affidavit of service, the summons and complaint were served upon defendant Wilmington Trust National Association, as Trustee for MFRA Trust 2015-1, on December 29, 2016, pursuant to CPLR 311, via delivery to Brandy Permanova, Legal Administrator, a person of suitable age and discretion authorized to accept service.

         Plaintiff moves for an order appointing a referee to compute and amending the caption to remove defendants The Board of Managers of Crandall Square Condominium and "John Doe No. 1" through "John Doe No. 15, " on the basis that they are not necessary party defendants.

         Defendant Wilmington Trust National Association, not in its individual capacity but solely as Trustee for MFRA Trust 2015-1 ("defendant" or "Wilmington"), opposes the motion and cross-moves for an Order: (1) vacating a default, pursuant to CPLR 5015 and 317; and (2) dismissing plaintiff's complaint pursuant to CPLR 3211 [a] [1], [5], [7] and [10] and canceling plaintiff's Lis Pendens or, in the alternative, compelling acceptance of a late answer pursuant to CPLR 3012 [d].

         Briefly, in its motion, plaintiff argues that Wilmington was served with the pleadings but failed to appear or answer and seeks an order of reference. In its cross-motion, Wilmington argues that the default is not its fault but, rather, is the result of law office failure of its prior retained counsel. Wilmington states that it retained counsel within six days of being served, prior to the time its answer was due, and counsel accepted the referral but then failed to serve an answer. Wilmington contends it did not know counsel failed to serve an answer or otherwise take action to avoid default until after the time to answer had expired. Defendant further contends that prior counsel advised that plaintiff's counsel had initially granted defendant an extension of time to answer but later rescinded same. Wilmington also contends that the it has meritorious defenses to the action. Wilmington argues that the mortgage spreader agreement, upon which plaintiff relies, lacks consideration and fails to create a valid and enforceable lien on the property. Wilmington claims the mortgage spreader agreement encumbers the building, not the individual condo units. Wilmington further argues that even if the mortgage spreader agreement created an enforceable lien, the statute of limitations has expired as by its terms (paragraph "Third"), the debt was accelerated on March 1, 2008 and no written extension agreement has been provided or alleged by plaintiff and, thus, the foreclosure action was required to be commenced on or before February 28, 2014. Wilmington also argues that "it appears that any lien created by" the mortgage spreader agreement has been paid off and satisfied, based upon a notation in the HUD closing statement.

         Wilmington also asserts that plaintiff's motion should be denied as it is without merit and deficient on the face of the pleadings. Specifically, Wilmington contends that plaintiff has failed to meet its prima facie burden of entitlement to foreclosure for several reasons. Wilmington alleges that plaintiff has failed to name necessary parties, including its borrower, Parkside, and Canfield. Defendant also argues that plaintiff failed to include an affidavit of merit and relies instead on its attorney's affirmation, which fails to properly authenticate the documents attached, has failed to offer proof of default and has failed to offer proof of the amount still owed. Wilmington also argues that plaintiff has failed to properly demonstrate standing, as it did not attach a copy of the note or attest that the note is in its possession.

         In opposition to defendant's cross-motion, plaintiff submitted an affirmation of its counsel, denying that defendant had been granted an extension of time to answer the complaint and averring that the note is and has been in counsel's possession. Plaintiff also submitted an affidavit of Craig Shamlian, a member of plaintiff, setting forth the factual history underlying this action, a separate action brought by plaintiff against Parkside and the four guarantors on the note, and a separate foreclosure action involving the same real property. (Santander Bank was the successful bidder at the sale held in connection with that action and title was conveyed to defendant as Santander's designee.) Mr. Shamlian further sets forth the amount plaintiff alleges is due on the note. Copies of various documents, including the note and mortgage, are annexed to Mr. Shamlian's affidavit.

         In his affidavit, Mr. Shamlian avers that in the action on the note, plaintiff secured a judgment against Parkside and the guarantors, but has been unable to collect its judgment. He further attests that no property executions were served because plaintiff was unable to identify any assets available for execution and, therefore, no sheriff has ever returned to plaintiff a property executed unsatisfied. Mr. Shamlian represents that other than the subject property, all of plaintiff's other real estate collateral has been foreclosed by first mortgagees and the subject property is plaintiff's only remaining collateral and only known potential source of recovery.

         Plaintiff argues that defendant's cross-motion must be denied as defendant has failed to offer a reasonable excuse for its default and contends that defendant's alleged defenses are refuted by documentary evidence or fail as a matter of law.

         Oral argument on the motion and cross-motion was held on June 1, 2017. During that argument, defendant's counsel argued, inter alia, that plaintiff's complaint should be dismissed based upon the principle of election of remedies, pursuant to RPAPL 1301, and made an application to deem defendant's cross-motion amended to seek dismissal of the complaint upon this ground. Upon consent of plaintiff's counsel, the Court granted that application and gave each party an opportunity to offer further written submissions on that issue. Counsel for both parties thereafter ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.