Adam Leitman Bailey, P.C. Wins Summary Judgment by Establishing Note Holder’s Entitlement to Judgment
In Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, its trustee v. Balash, et al., a highly contested foreclosure proceeding in Queens Supreme Court, Adam Leitman Bailey, P.C. won a motion for summary judgment and an order of reference in favor of the plaintiff by sufficiently establishing the note holder’s entitlement to judgment as a matter of law.
The subject note and mortgage were assigned to the current note owner prior to commencement of the action by endorsement on, and physical delivery of, the note and by assignment of mortgage.
Included amongst the borrower’s ten pleaded affirmative defenses to the action was a challenge to the plaintiff’s standing. Further, in opposition to the summary judgment motion, the borrower argued that the action should be dismissed for the plaintiff’s alleged bad faith denial of a modification application, or that the motion should be denied for discovery because there are “facts (possession of the original note, the debt amount, etc) not known to the defendant and could be obtained only by discovery demands.”
In a memorandum decision dated August 24, 2017, Judge Rudolph E. Greco, Jr. accepted and adopted all of Adam Leitman Bailey, P.C.’s arguments in favor of the note holder and granted summary judgment.
Specifically, Adam Leitman Bailey, P.C. argued that the note and mortgage were assigned to the plaintiff prior to commencement of the action by both endorsements on, and physical delivery of, the note and were annexed to the complaint to prove it. Adam Leitman Bailey, P.C. went the extra mile, though, in anticipation of this borrower raising standing in defense, by also including with the motion an affidavit from its client confirming the delivery date of the consolidated note. Even though not legally needed, the inclusion of this affidavit was specifically referenced in Judge Greco, Jr.’s decision and helped solidify the win.
Adam Leitman Bailey, P.C. also successfully argued that (i) a foreclosing plaintiff is not required to modify its mortgage loan prior to or after a default in payment, and (ii) where a party’s request for discovery is nothing more than a fishing expedition, it should not be entertained.
Jackie Halpern Weinstein, Esq. and another attorney of the Foreclosure Group at Adam Leitman Bailey, P.C. won this motion for the note holder.