Wilmington PT Corp. v. Mitra

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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WILMINGTON PT CORP.,

Plaintiff,

-against-

MEMORANDUM AND ORDER

RANJIT KUMAR MITRA, JACOB 19-CV-1904 (RPK) (SJB)

MILTON, and NEW YORK CITY

ENVIRONMENTAL CONTROL

BOARD,

Defendants.

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RACHEL P. KOVNER, United States District Judge:

This opinion arises out of a mortgage obtained by defendants Ranjit Kumar Mitra and

Jacob Milton. After defendants defaulted on their loan obligations, plaintiff Wilmington PT Corp.

sued them to foreclose on the mortgage. Plaintiff has moved for summary judgment against

defendants. See Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. (“MSJ”) (Dkt. #26).

As explained below, plaintiff’s motion is granted.

BACKGROUND

The following facts are taken from the parties’ Rule 56.1 statements and relevant portions

of the record and are undisputed unless otherwise noted. In 2005, defendants executed a mortgage

of a property at 178-29 Eveleth Road in Jamaica, New York, to New Century Mortgage

Corporation. See Pl.’s Rule 56.1 Statement ¶ 2; Compl. Ex. B (Dkt. #1). An accompanying note,

signed by Mitra, set out the details of the payments that would be due in connection with the

mortgage. Defendants defaulted on the mortgage in June 2013. See Pl.’s Rule 56.1 Statement ¶ 3;

Compl. Ex. C. Plaintiff alleges that, at the time the complaint was filed, it was the owner and

holder of both the mortgage and the note. Pl.’s Rule 56.1 Statement ¶ 8.

In 2018, plaintiff’s counsel mailed defendants default notices as well as 90-day notices

pursuant to Section 1304 of the New York Real Property Actions and Proceedings Law. Pl.’s Rule

56.1 Statement ¶¶ 4-5. The notices stated that defendants had defaulted on their loan and owed

$50,987.33. Compl. at 45. They further stated the defendants might be at risk of foreclosure. Ibid.

And they advised that if defendants did not seek to resolve the matter within 90 days, legal action

might be brought against them. Id. at 46.

After 90 days passed without defendants taking action to cure the default, plaintiff filed

this lawsuit. See Compl.; Pl.’s Rule 56.1 Statement ¶ 6. Plaintiff then filed a motion for summary

judgment, arguing that there is no material dispute of fact regarding the existence of the mortgage

obligation or defendants’ default, and that defendants have not presented any valid affirmative

defense. See MSJ at 1.

Defendants argue that summary judgment should be denied. They acknowledge executing

a mortgage to New Century Mortgage Corporation and defaulting on that mortgage. Compare

Defs.’ Rule 56.1 Statement ¶ 1 with Pl.’s Rule 56.1 Statement ¶¶ 2, 6. But they contend that the

Court lacks jurisdiction over them because they were never properly served with the complaint.

Defs.’ Mem in Opp’n to Pl.’s MSJ (“Defs.’ Opp’n”) at 55-56 (Dkt. #27).1 They also assert that

there are genuine disputes as to whether plaintiff was assigned the mortgage in this case and as to

whether plaintiff has physical possession of the note executed by Mitra. Defs.’ Opp’n at 54;

see 1077 Madison St., LLC v. Daniels, 954 F.3d 460, 463-64 (2d Cir. 2020) (explaining an entity

has standing to foreclose on a mortgage issued to another financial institution only if the entity

seeking foreclosure was assigned the mortgage or has physical possession of the note).

1 Defendants filed all of their opposition papers—including their memorandum, Rule 56.1 Statement, and

exhibits—as a single PDF. Page citations in this Memorandum & Order refer to the PDF page of that single

document.

Finally, they deny that plaintiff mailed them the notices that are prerequisites to a foreclosure

action. Compare Defs.’ Rule 56.1 Statement ¶ 1 with Pl.’s Rule 56.1 Statement ¶ 5.

STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of

fact is genuine if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Frost v. New York City Police Dep’t, 980 F.3d 231, 242 (2d Cir. 2020) (quoting

SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). “A fact is material if

it might affect the outcome of the suit under governing law.” Ibid. In assessing the record, I view

“the evidence in the light most favorable to the nonmoving party and draw all reasonable

inferences in that party’s favor.” Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir. 2010).

DISCUSSION

Plaintiff’s motion for summary judgment is granted. As explained below, defendants have

forfeited their argument that this Court does not have personal jurisdiction over them, and their

argument that plaintiff has not demonstrated standing to pursue foreclosure lacks merit. Moreover,

there is no genuine dispute of material fact as to whether plaintiff is entitled to a judgment of

foreclosure.

I. Defendants Have Forfeited Their Jurisdictional Defense

Defendants have forfeited their argument that the court lacks personal jurisdiction over

them because they were never properly served. See Defs.’ Opp’n at 55-56; Answer ¶ 3 (Dkt. #11).

A defendant may be estopped from pursuing a personal jurisdiction defense—even one raised in

the answer—if the “actions of the defendant during the litigation amount to a legal submission to

the jurisdiction of the court, whether voluntary or not.” City of New York v. Mickalis Pawn Shop,

LLC, 645 F.3d 114, 134 (2d Cir. 2011) (brackets, ellipses, and internal quotation marks omitted).

To “forfeit a personal jurisdiction defense, a defendant must give a plaintiff a reasonable

expectation that it will defend the suit on the merits or must cause the court to go to some effort

that would be wasted if personal jurisdiction is later found lacking.” Corporación Mexicana de

Mantenimiento Integral, S. de R.L. de C.V. v. Pemex-Exploración y Producción, 832 F.3d 92, 102

(2d Cir. 2016). Under this principle, forfeiture can result from “a delay in challenging personal

jurisdiction by motion to dismiss . . ., even where the defense was asserted in a timely

answer.” Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999) (alteration and internal

quotation marks omitted); see Roberts v. Bennaceur, 658 F. App’x 611, 616 (2d Cir. 2016) (same).

Similarly, a party may forfeit its jurisdictional defense by “actively litigating other issues and

forgoing the opportunity to litigate that . . . defense.” Roberts, 658 F. App’x at 616.

Defendants have forfeited their jurisdictional defense through their conduct during the

litigation of this suit. Defendants asserted the absence of personal jurisdiction in their answer. But

they never moved to dismiss for lack of personal jurisdiction, which on its own may be grounds to

find forfeiture. See Hamilton, 197 F.3d at 60. Instead, after filing their answer, defendants agreed

to a discovery plan that set deadlines for various phases of fact discovery—with all discovery to

be completed in 2020—without interposing any jurisdictional objection. See Defs.’ Letter to

Magistrate Judge Bulsara (Dkt. #16). Defendants then participated in two status conferences

before Judge Bulsara, again without filing a motion raising a jurisdictional defense. While

defendants later attempted to resuscitate their jurisdictional argument by raising it in opposition to

summary judgment, their actions “during the litigation amount to a legal submission to the

jurisdiction” of this Court. Mickalis, 645 F.3d at 134.

II. Plaintiff Has Standing to Bring This Foreclosure Action

Contrary to defendants’ arguments, see Defs.’ Opp’n at 52-54, plaintiff has standing to

bring this suit. A plaintiff can establish standing in a foreclosure action by demonstrating that it

was “the holder . . . of the underlying note at the time the foreclosure action was commenced.”

1077 Madison, 954 F.3d at 463-64 (internal quotation marks omitted). This burden can be met by

(i) attaching to the complaint copies of the note and the allonge2 endorsing the plaintiff as payee;

and (ii) submitting an affidavit averring based on personal knowledge that the plaintiff is the

current note holder. See ibid. By offering this evidence, a plaintiff obviates any need for the court

to consider arguments concerning the note’s chain of title. See id. at 464 n.1; OneWest Bank, N.A.

v. Melina, 827 F.3d 214, 223 (2d Cir. 2016) (“‘[A]lthough the better practice would have been for

[the plaintiff] to state how it came into possession of the note in its affidavit in order to clarify the

situation completely,’ the plaintiff was not precluded from obtaining summary judgment by not

having provided these details.” (quoting Aurora Loan Servs., LLC v. Taylor, 34 N.E.3d 363, 366-

67 (N.Y. 2015))).

Here, plaintiff has established standing by demonstrating that it held the underlying note

when this lawsuit was filed. See 1077 Madison, 954 F.3d at 463-64. Plaintiff attached to the

complaint copies of the note and an allonge endorsing it as payee. Compl. at 22-26. Additionally,

plaintiff has submitted an affidavit from its vice president averring that (i) plaintiff “came into

possession of the original Promissory Note with endorsements and allonges as affixed thereto”

prior to the filing of the foreclosure action; (ii) the vice president “personally reviewed . . . [the]

original documents with regard to” defendants’ loan; and (iii) plaintiff attached to the complaint

true copies of the note and allonge. Weinreb Ex. F at ¶¶ 5-6 (Dkt. #26-10). That evidence is

sufficient to establish standing at the summary-judgment stage. See 1077 Madison, 954 F.3d at

463-64.

2 An allonge is “[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further

indorsements when the original paper is filled with indorsements.” CIT Bank, N.A. v. Mitchell, No. 17-CV-1969,

2021 WL 54081, at *1 n.2 (E.D.N.Y. Jan. 6, 2021) (quoting Black’s Law Dictionary (10th ed. 2014)).

Defendants have not created a genuine dispute of fact by submitting affidavits claiming

that “on the day of Closing on September 10, 2005 . . . [Mr. Milton] [r]etained possession of the

Original Note.” Defs.’ Opp’n at 39. Plaintiff was not required to explain how it came into

possession of the note in its supporting affidavit. See OneWest Bank, 827 F.3d at 223. And even

if defendants’ statements are true, defendants’ affidavits are limited in scope to the day of the

closing; they make no claims regarding how long Mr. Milton purportedly retained the note or who

defendants believe is the present note holder. See Defs.’ Opp’n at 38-41. The affidavits therefore

do not contradict plaintiff’s evidence that it currently holds the note. Accordingly, defendants

have not created a genuine dispute of fact as to whether plaintiff is the current note holder.

III. Plaintiff Is Entitled to Summary Judgment

Plaintiff is entitled to summary judgment on its foreclosure claim. Under New York law,

three elements must be established to sustain a foreclosure claim: (1) “the existence of an

obligation secured by a mortgage; (2) a default on that obligation by the debtor; and (3) notice to

the debtor of that default.” Gustavia Home, LLC v. Hoyer, 362 F. Supp. 3d 71, 79 (E.D.N.Y. 2019)

(quoting United States v. Paugh, 332 F. Supp. 2d 679, 680 (S.D.N.Y. 2004)); Costa v. Deutsche

Bank Nat’l Tr. Co. for GSR Mortg. Loan Tr. 2006-OA1, 247 F. Supp. 3d 329, 338 (S.D.N.Y. 2017)

(same); see R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 n.2 (2d Cir. 1997). Once the mortgage

holder establishes that prima facie case, the mortgagor can defeat foreclosure only through “an

affirmative showing” that a defense to the action exists. Gustavia Home, 362 F. Supp. 3d at 80

(quoting Builders Bank v. Charm Devs. II, LLC, No. 09-CV-3935, 2010 WL 3463142, at *2

(E.D.N.Y. Aug. 30, 2010)).

Here, there is no genuine dispute of material fact as to the three elements of plaintiff’s

prima facie case. Defendants admit the first two elements—namely, that an obligation secured by

a mortgage exists and that they defaulted on it, id. at 79. Compare Defs.’ Rule 56.1 Statement ¶ 1

with Pl.’s Rule 56.1 Statement ¶¶ 2, 6; see also generally Defs.’ Opp’n (raising no arguments on

the first and second elements). As to the third element, plaintiff has established notice to defendant

by attaching to its complaint (i) a “Notice of Default” addressed to defendants that is dated

December 20, 2018, (ii) a second letter addressed to defendants, titled “YOU MAY BE AT RISK

OF FORECLOSURE” and dated December 20, 2018, and (iii) an affidavit of mailing. See Compl.

at 41-51. In defendants’ Rule 56.1 counterstatement, defendants summarily deny the portions of

plaintiff’s rule 56.1 statement asserting that a default notice and a 90-day notice was mailed to

defendants in 2018. Compare Defs.’ Rule 56.1 Statement ¶ 1 with Pl.’s Rule 56.1 Statement ¶¶ 4-

5. But that denial is insufficient to withstand summary judgment, because defendants cite no

admissible evidence in support of their denial, and do not otherwise “adduce any basis for

questioning the veracity of the documents submitted by plaintiff reflecting that notice was given

in two different forms.” Gustavia, 362 F. Supp. 3d at 80; see, e.g., CIT Bank, N.A. v. Vasquez,

No. 17-CV-4654, 2019 WL 4418883, at *4 (E.D.N.Y. Aug. 19, 2019), report and recommendation

adopted, 2019 WL 4415291 (E.D.N.Y. Sept. 16, 2019); see also Fed. R. Civ. P. 56(c)(1); BellSouth

Telecomms., Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603, 615 (2d Cir. 1996) (“It is not sufficient

[in opposing summary judgment] merely to assert a conclusion without supplying supporting

arguments or facts.” (citation omitted)). Accordingly, there is no genuine dispute of material fact

over plaintiff’s prima facie case for foreclosure.

Defendants have also failed to put forward evidence supporting a valid affirmative defense.

Defendants have not advanced any affirmative defenses in opposing summary judgment other than

the jurisdictional and standing arguments that are insufficient for the reasons explained above.

Defendants have therefore abandoned any other defenses. See, e.g., Jackson v. Fed. Exp., 766

F.3d 189, 198 (2d Cir. 2014) (stating that “a court may . . . infer from a [counseled] party’s partial

opposition” to summary judgment “that relevant . . . defenses that are not defended have been

abandoned”); Malik v. City of New York, 841 F. App’x 281, 284 (2d Cir. Jan. 11, 2021) (same).

CONCLUSION

Plaintiff’s motion for summary judgment is granted. Plaintiff is directed to submit a

proposed judgment of foreclosure providing for a sale of the property consistent with this

Memorandum & Order by July 14, 2021. The proposed judgment of foreclosure should provide

for the appointment of a proposed referee to effectuate the sale and to disperse funds from such a

sale.

SO ORDERED.

Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: June 7, 2021

Brooklyn, New York