Wachovia Bank, National Ass'n v. Carcano

Summary

The Appellate Division affirmed an order granting summary judgment to Wachovia Bank in a mortgage foreclosure action and appointing a referee to compute the amount due. The court held that the bank established the mortgage, unpaid note, and default, and that the defendants failed to raise a triable issue of fact; it also rejected their challenges to the mortgage default notices.

Holdings

1. A mortgage plaintiff establishes prima facie entitlement to summary judgment by producing the mortgage, the unpaid note, and evidence of default. Wachovia made that showing.
2. The appellants failed to raise a triable issue of fact as to a bona fide defense to the foreclosure action.
3. The notices of default satisfied the mortgage provision requiring notice that the borrowers had the right to present defenses in a foreclosure action.
4. The appellants' challenge to the November 2008 notice lacked merit because the mortgage required only that the cure date be at least thirty days from the date of notice; in any event, the May 2009 notice satisfied the mortgage's requirements.

Questions Presented

1. Whether the plaintiff established prima facie entitlement to summary judgment in a mortgage-foreclosure action by producing the mortgage, unpaid note, and evidence of default.
2. Whether the appellants raised a triable issue of fact concerning a bona fide defense to foreclosure.
3. Whether the notices of default complied with the mortgage provisions requiring notice of the right to present defenses in a foreclosure action.
4. Whether a notice providing at least ninety days to cure could satisfy the mortgage's requirement that the cure date be at least thirty days after the notice, and whether the later May 2009 notice independently satisfied the mortgage.

Disposition

affirmed