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Adam Leitman Bailey, P.C. Salvages and Wins Summary Judgment for Plaintiff on Reply


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In Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, its trustee v. Williams, et al., a highly contested foreclosure proceeding in Nassau Supreme Court, Adam Leitman Bailey, P.C. won a motion for substitution, summary judgment, and an order of reference, on reply, in favor of the Plaintiff Note Holder, despite numerous deficiencies in the moving papers prepared by the Plaintiff’s prior counsel and resulting opposition.

In opposition to the motion, the Borrower alleged that the Loan was not properly accelerated.

Specifically, the Borrower argued that the 30 Day default notice was not in compliance with the controlling provisions of the Note and Mortgage, as it was not sent by the Plaintiff Lender, but was sent by its counsel.  In support of the argument, the Borrower cited to case law construing notice provisions in  leases in landlord-tenant summary proceedings.

On reply, Adam Leitman Bailey, P.C. successfully argued that there exists no authority in support of the Borrower’s argument that the 30 day default notice was required to be sent by the Plaintiff Lender, highlighting the fact that it is not settled law that holdings strictly construing notice provisions in a lease have any application in a mortgagor/mortgagee relationship.

The Borrower further alleged that the Plaintiff lacked standing to commence the action.

The Note and Mortgage were originally executed in favor of the originator and were subsequently assigned to a fellow subsidiary of the originator, and then to another entity, which ultimately merged with the Plaintiff Lender.

On reply, Adam Leitman Bailey, P.C. successfully and creatively argued that since the only transfers of the Note and Mortgage were to a fellow subsidiary and merged bank, the Plaintiff Lender remained the beneficial owner of the Note and Mortgage, and, thus, was the owner of the Note and Mortgage at the time the action was commenced, as a matter of law. Adam Leitman Bailey, P.C. further argued that since the Plaintiff Lender was the original lender and remained the beneficial owner of the Note and Mortgage, the Plaintiff Lender was not required to provide evidence proving its standing to commence the action in order to establish, without question, its prima facie entitlement to judgment as a matter of law.

The Borrower additionally challenged the portion of the motion seeking substitution of the Plaintiff Lender’s assignee, Ventures Trust.

During the pendency of the action, the Note and Mortgage were assigned by allonge and physical delivery of the Note and by assignment of mortgage.  The assignment of mortgage annexed by Plaintiff’s prior counsel, however, was erroneously not for the subject loan, which the Borrower used in support of his standing argument.

In defeating the Borrower’s challenge to standing, Adam Leitman Bailey, P.C. successfully demonstrated that a written assignment of mortgage was not necessary, since the Note was validly assigned by allonge and physical delivery, and, as such, the Mortgage passed with the Note as an inseparable incident.

Adam Leitman Bailey, P.C. thoroughly addressed and disproved each of the Borrower’s remaining opposing arguments on reply, leaving the Court with no legal choice but to find for the Plaintiff Note Holder in granting the motion in its entirety.

Jackie Halpern Weinstein, Esq., Jessie D. Bonaros, Esq., and Danny Ramrattan, Esq. of the Foreclosure Group at Adam Leitman Bailey, P.C. won this motion for the Note Holder.         

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