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.

Countrywide Home Loans, Inc. v. Gibson

Supreme Court of New York, Second Department

January 24, 2018

Countrywide Home Loans, Inc., respondent,
v.
Kirk Gibson, et al., defendants, Brett Jones, appellant. Index No. 2427/08

          Argued - October 17, 2017

         D54402 L/hu

          Regina Felton, Brooklyn, NY, for appellant.

          Adam Leitman Bailey, P.C., New York, NY (Jackie Halpern Weinstein of counsel), and Fidelity National Law Group, New York, NY (Daniel A. Womac and Hilary R. Levine of counsel), for respondent (one brief filed).

          JOHN M. LEVENTHAL, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         In an action to foreclose a mortgage, the defendant Brett Jones appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated March 20, 2015, which granted the plaintiffs motion pursuant to CPLR 4401, made at the close of evidence, for judgment as a matter of law against him.

         ORDERED that the order is affirmed, with costs.

         In 2004, the defendant Brett Jones borrowed the sum of $337, 455 from Option One Mortgage Corporation. The loan was secured by a mortgage on the subject property (hereinafter the Option One mortgage). Two years later, after defaulting on the Option One mortgage, Jones turned to MAI Management and Redemption, LLC (hereinafter MAI), for help in avoiding foreclosure. MAI located the defendant Kirk Gibson, who, for a fee, agreed to purchase the subject property from Jones and obtain a new mortgage to finance the purchase.

         At the closing on November 13, 2006, a portion of the proceeds was used to pay off the Option One mortgage, and a satisfaction of mortgage discharging the Option One mortgage was issued. Gibson obtained two loans from the defendant Premium Capital Funding, LLC, doing business as TopDot Mortgage (hereinafter TopDot), in the amounts of $524, 000 and $131, 000, respectively. The larger loan was secured by a first mortgage on the subject property (hereinafter the TopDot mortgage), and the smaller loan was secured by a second mortgage.

         Gibson subsequently defaulted on his mortgage payments, and the plaintiff, as successor-in-interest to TopDot, commenced this action in 2008 to foreclose the TopDot mortgage. Jones answered the complaint, asserting, inter alia, affirmative defenses that the plaintiff lacked standing, that the Option One mortgage was not paid off, and that the plaintiff was ''perpetuating the fraud perpetrated upon [him], " as well as a counterclaim alleging that the deed by which Jones conveyed the subject property to Gibson was a forgery.

         At a nonjury trial, the plaintiff offered the testimony of Nathan Musick, an assistant vice president of Bank of America National Association (hereinafter Bank of America). In relevant part, Musick testified that he is the authorized custodian of the original note relating to the TopDot mortgage, which has been kept in the regular course of Bank of America's business. Musick further confirmed, based on information contained in a database created by the plaintiff and transferred to Bank of America when the plaintiff was absorbed by merger into Bank of America's corporate structure, that the plaintiff took possession of the original note on November 28, 2006, before this action was commenced.

         The plaintiff also offered the testimony of Steven Vasco, the notary public who witnessed the signatures of Jones and Gibson on the November 13, 2006, deed transferring the subject property to Gibson. Although Vasco had no independent recollection of the closing, he confirmed his signature and notary stamp on the deed, and explained the procedure he usually follows in verifying the identity of signatories.

         Jones testified on his own behalf. In relevant part, he conceded that the grantor's signature appearing on the November 13, 2006, deed 'look[ed] like" his, but maintained that he "would never sell [his] home" or "give [his] home away." He acknowledged receiving $56, 675.82 from the 2006 refinancing transaction, and confirmed that, after the refinancing, he never again received another invoice or demand regarding the Option One mortgage.

         At the close of evidence, the plaintiff moved pursuant to CPLR 4401 for judgment as a matter of law against Jones. The ...


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.