Opinion
13231/2012
03-01-2017
Wells Fargo Bank, N.A., Plaintiffs, v. Vivienne Pinnock, Idolin Pinnock a/k/a Idolin Icilda Pinnock a/k/a Idolin I. Pinnock, Defendants.
For Plaintiffs: Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 For Defendants: Michael Kennedy Karlson 60 Seaman Ave., 4E New York, NY 10034
For Plaintiffs: Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 For Defendants: Michael Kennedy Karlson 60 Seaman Ave., 4E New York, NY 10034 Howard H. Heckman, J.
Upon the following papers numbered 1 to 24 read on this motion : Notice of Motion/ Order to Show Cause and supporting papers 1-18 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 19-20; Replying Affidavits and supporting papers 21-24; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion by plaintiff Wells Fargo Bank, N.A., seeking an order: 1) granting summary judgment striking the answer of defendant Vivienne Pinnock; 2) substituting "John" Pinnock as a named party defendant in place and stead of the defendant identified as "John Doe No.1" and discontinuing the action against defendants identified as "John Doe #2" through "John Doe #25"; 3) deeming all appearing and non-appearing defendants in default; 4) amending the caption; and 5) appointing a referee to compute the sums due and owing to the plaintiff in this mortgage foreclosure action is granted; and it is further
ORDERED that plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of the Court; and it is further
ORDERED that plaintiff is directed to serve a copy of this order with notice of entry upon all parties who have appeared and not waived further notice pursuant to CPLR 2103(b)(1),(2) or (3) within thirty days of the date of this order and to promptly file the affidavits of service with the Clerk of the Court.
Plaintiff's action seeks to foreclose a mortgage in the sum of $312,250.00 executed by defendants Vivienne Pinnock and Idolin Pinnock on November 13, 2007 in favor of Somerset Investors Corp.. On the same date the defendants also executed a promissory note promising to re-pay the entire amount of the indebtedness to the mortgage lender. By assignment dated August 5, 2011 Mortgage Electronic Registration Systems, Inc. as nominee for Somerset Investors Corp. assigned the mortgage to plaintiff Wells Fargo Bank, N.A. Plaintiff claims that the defendants have defaulted in making timely monthly mortgage payments since March 1, 2011. Plaintiff's motion seeks an order granting summary judgment striking defendant's answer and for the appointment of a referee.
In opposition, defendant Vivienne Pinnock submits an attorney's affirmation and claims that the plaintiff failed to submit sufficient proof to show that the mortgage lender has complied with the notice requirements set forth in the mortgage and the 90 day notice requirements pursuant to RPAPL1304 & 1306. Defendant claims that the plaintiff's proof fails to confirm that the 90 day notices were mailed by first class and certified mailing to the defendants residential premises. Defendant claims that the proof submitted does not show that the RPAPL 1304 notices complied with statutory requirements concerning the size of the font (14 point type) in its listing of five housing counseling agencies. Defendant also claims that there is no proof of mailing of the mortgage default notice and no evidence to prove compliance with RPAPL 1306 filing requirements. Finally, defendant contends that plaintiff failed to provide an updated OCA attorney affirmation verifying the accuracy of the evidence submitted by the mortgage lender.
In reply, the plaintiff submits an attorney's affirmation and argues that all notices required to be served under the terms of the mortgage agreement and pursuant to RPAPL 1304 & 1306 were properly served and that the proof submitted in the form of two affidavits from two Wells Fargo vice presidents of Loan Documentation provide sufficient evidence consistent with the business records exception to the hearsay rule to prove such compliance. Plaintiff claims that the notices were in all respects proper and argues that a clear reading of the statute (RPAPL 1304) reveals that the 14 point type requirement did not apply to the list of five housing counseling agencies. Plaintiff also claims that the mortgage lender complied with the filing requirements set forth pursuant to RPAPL 1306 and contends that the OCA 431/11 affirmation was in all respects proper. Plaintiff claims that summary judgment must be granted based upon the defendant's continuing default in making timely monthly payments due under the terms of the note and mortgage and that defendant's remaining affirmative defenses and three counterclaims are without legal merit and must therefore be dismissed.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material question of fact from the case. The grant of summary judgment is appropriate only when it is clear that no material and triable issues of fact have been presented (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957)). The moving party bears the initial burden of proving entitlement to summary judgment (Winegrad v. NYU Medical Center, 64 NY2d 851 (1985)). Once such proof has been proffered, the burden shifts to the opposing party who, to defeat the motion, must offer evidence in admissible form, and must set forth facts sufficient to require a trial of any issue of fact (CPLR 3212(b); Zuckerman v. City of New York, 49 NY2d 557 (1980)). Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 (1979)).
Entitlement to summary judgment in favor of the foreclosing plaintiff is established, prima facie by the plaintiff's production of the mortgage and the unpaid note, and evidence of default in payment (see Wells Fargo Bank N.A. v. Eraboba, 127 AD3d 1176, 9 NYS3d 312 (2nd Dept., 2015); Wells Fargo Bank, N.A. v. Ali, 122 AD3d 726, 995 NYS2d 735 (2nd Dept., 2014)). Where the plaintiff's standing is placed in issue by the defendant's answer, the plaintiff must also establish its standing as part of its prima facie showing (Aurora Loan Services v. Taylor, 25 NY3d 355, 12 NYS3d 612 (2015); Loancare v. Firshing, 130 AD3d 787, 14 NYS3d 410 (2nd Dept., 2015); HSBC Bank USA, N.A. v. Baptiste, 128 AD3d 77, 10 NYS3d 255 (2nd Dept., 2015)). In a foreclosure action, a plaintiff has standing if it is either the holder of, or the assignee of, the underlying note at the time that the action is commenced (Aurora Loan Services v. Taylor, supra.; Emigrant Bank v. Larizza, 129 AD3d 94, 13 NYS3d 129 (2nd Dept., 2015)).
Proper service of an RPAPL 1304 notice on borrower(s) is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing compliance with this condition (Aurora Loan Services, LLC v. Weisblum, 85 AD3d 95, 923 NYS2d 609 (2nd Dept., 2011); First National Bank of Chicago v. Silver, 73 AD3d 162, 899 NYS2d 256 (2nd Dept., 2010)). RPAPL 1304(2) provides that notice be sent by registered or certified mail and by first-class mail to the last known address of the borrower(s), and if different, to the residence that is the subject of the mortgage. The notice is considered given as of the date it is mailed and must be sent in a separate envelope from any other mailing or notice and the notice must be in 14-point type.
The plaintiff's proof in support of its motion consists of: 1) copies of the signed promissory note twice indorsed to Wells Fargo Bank, N.A.; 2) copies of the November 13, 2007 signed mortgage together with a copy of the August 5, 2011 assignment; 3) two affidavits from Wells Fargo vice presidents of loan documentation testifying about the contents of the loan (business) records maintained by the mortgage lender; 4) copies of the mortgage loan default notice (claimed to have been mailed to the property address by first class mail on October 30, 2011) together with copies of the bank's electronic record-keeping practice documents identified as "Mailbook" and "TrackRight Transaction History"; and 5) copies of the RPAPL 90 day notices (claimed to have been mailed to defendants Vivienne Pinnock and Idolin Pinnock to the property address by certified and first class mail on October 30, 2011) with copies of the bank's electronic record-keeping practice documents identified as "Mailbook" and "TrackRight Transaction History" and a copy of the return image of the unclaimed envelope and return receipt card.
Paragraphs 2, 3, 4, 5, 8, 9 & 10 of the December 8, 2014 affidavit submitted by a Wells Fargo vice president of loan documentation states:
2. With respect to this mortgage loan, Wells Fargo has collected and posted payments on its own behalf, maintains the escrow account, handles all aspects of customer service, and referred this mortgage loan for foreclosure when, as occurred, Vivienne Pinnock and Idolin Pinnock A/K/A Idolin Icilda Pinnock A/K/A Idolin I. Pinnock defaulted on their mortgage loan payments.
3. I am fully familiar with Wells Fargo's dealings with the Defendants in this action, and the relevant facts, circumstances, events and documentation set forth in this affidavit. I have reviewed Plaintiff's Complaint and Pinnock's Answer, as well as Wells Fargo's books and records with respect to Defendants' mortgage loan. These books and records are: (1) made in the regular course of Wells Fargo' business and it was the regular course of business of Wells Fargo to make, maintain, and keep such records concerning Defendants' mortgage loan; (2) made contemporaneously with the occurrence of any act, transaction, or event described in the records or within a reasonable time thereafter; and (3) the records were created by individuals with personal knowledge of the act, transaction, or event in the record. I have continuing access to these records, and I have personally reviewed each document attached to this affidavit. Based upon my personal knowledge and review of such business records, I hereby attest to and verify the truth of the matters asserted herein.
4. On or about November 13, 2007, Defendants obtained a loan from Somerset Investors Corp., a New York Corporation in the original principal amount of $312,250, memorialized in a promissory note and secured by a mortgage on real property located at 15 N. 10th Street, Wyandanch, NY 11798 (the "Property"). Copies of the Note and Mortgage as maintained in Wells Fargo's business records are annexed hereto as Exhibits 1 and 2, respectively.
5. Long prior to the commencement of this action, Somerset specifically endorsed the Note to Wells Fargo, and the Note and Mortgage were physically delivered to Plaintiff. Plaintiff remained in physical possession of these documents at all material times, including April 27, 2012, the day the action was commenced.
8. Defendants made loan payments to Wells Fargo until they defaulted beginning with the required payment due March 1, 2011. As a result of that default, on or about October 30, 2011, Plaintiff mailed a notice of default to Defendants at the Property. A copy of the Notice of Default is annexed hereto as Exhibit 4.
9. In addition, on or about October 30, 2011, Plaintiff mailed a 90-day notice as described in Real Property Actions and Proceedings Law 1304, to Defendants at the Property by certified and first-class mail. Wells Fargo maintains two copies of the 90-day Notice, one which contains a 10 digit number at the top, which is the internal tracking number representing the copy sent by first class mail. The other copy contains a 20 digit number, which is the US Postal Service certified mail tracking number. True and accurate copies of the 90-Day Notice bearing the 10 and 20 digit tracking numbers are annexed hereto as Exhibit 5.
10. Despite these notices and the opportunity to cure, Defendants failed to cure their default.
Paragraphs 2, 3, 4 & 5 of the October 21, 2016 affidavit submitted by a Wells Fargo vice president of loan documentation states:
2. I am fully familiar with Wells Fargo's dealings with Defendant in this action, and the relevant facts, circumstances, events and documentation set forth in this affidavit. I have reviewed the Complaint and Answer, the Affidavit of Andrea Kruse in Support of Plaintiff's Motion for Summary Judgment, sworn-to December 8, 2014 (the "Kruse Affidavit"), submitted in support of Plaintiff's Motion for Summary Judgment, and Wells Fargo's books and records with respect to Defendant's mortgage loan. These books and records are: (1) made in the regular course of Wells Fargo's business and it is and was the regular course of business for Wells Fargo to make, maintain, and keep such records concerning the mortgage loan at issue; (2) made contemporaneously with the occurrence of any act, transaction, or event described in the records or within a reasonable time thereafter; and (3) created by individuals with personal knowledge of the act, transaction, or event in the record. The exhibits herein have been redacted to protect confidential information. I have continuing access to these records, am familiar with how they are compiled, and have personally reviewed each document annexed to this affidavit, and to the Kruse Affidavit, which are taken from such records. Based upon my personal knowledge obtained from my review of such business records, I hereby attest to and verify the truth of the matters asserted herein.
3. As explained in the affidavit of Andrea Kruse, sworn to on December 8, 2014 (the "Kruse Affidavit"), Wells Fargo d/b/a Wells Fargo Home Mortgage ("WFHM") sent a notice of default, in compliance with paragraphs 9 and 18 of the Mortgage, dated October 30, 2011 (the "Notice of Default"), to Defendant and to non-appearing defendant Idolin Pinnock at 15 N 10th Street, Wyandanch, NY 11798-2401 ("the Property"), by first-class mail. The Notice of Default advised of the amount due to cure the default, the date by which to cure the default, and that failure to cure the default would result in an acceleration of the Mortgage Loan. Wells Fargo's regular practice in 2011 was to generate and mail such notices to defaulted borrowers on the date of the notice, but no later than two days after that date and, once mailed, to place a copy of the notice in Wells Fargo's file for that loan, as a record that the notice was mailed. The Notice of Default contains a 10-digit tracking number on the top of the notice, used for internal tracing purposes to show that the notice was sent by first-class mail. The copy of the Notice of Default submitted herewith was obtained from the electronic records created and maintained by Wells Fargo as a result of the practice described above. In 2011, it was Wells Fargo's regular business practice to utilize a Mailbook (the "Mailbook") that memorialized its mailing of notices to defaulted borrowers. The Mailbook shows that Wells Fargo mailed the Notice of Default to Defendant at the Property by first-class mail on October 30, 2011. In 2011, it was also Wells Fargo's regular practice to utilize TrackRight to memorialize the mailing of notices to defaulted borrowers. The TrackRight transaction history (the "TrackRight Transaction History") shows that Wells Fargo mailed the Notice of Default to Defendant at the Property, by first-class mail on October 30, 2011; it contains the same 10-digit tracking number printed on the notice. I am familiar with such practice in my capacity as Vice President Loan Documentation for
Wells Fargo. Based upon this knowledge and my review of Wells Fargo's file for this Mortgage Loan, I attest that Wells Fargo's regular practice was adhered to here with respect to the Notice of Default. A copy of the Notice of Default attached as Exhibit 4 to the Kruse Affidavit is annexed hereto as Exhibit A, along with copies of the (i) Mailbook, and (ii) TrackRight Transaction History.
4. Wells Fargo d/b/a WFHM also mailed a 90-day notice, dated October 30, 2011, as described in Real Property Actions and Proceedings Law ("RPAPL") Sec. 1304 (the "90-Day Notice"), to Defendant and to non-appearing defendant Idolin Pinnick at the Property, by first-class and certified mail. The 90-Day Notice advised that failure to resolve the delinquency on the Mortgage Loan within ninety days would result in a foreclosure action being commenced. Wells Fargo's regular practice in 2011 was to generate and mail 90-day notices on the day of the notice, but no later than two days after that date, and, once mailed, to place a copy of the notice in Wells Fargo's file for that loan, as a record that the notice was mailed. Two copies of the 90-Day Notice were printed in size fourteen font or greater, and one was sent to Defendant at the Property by first-class mail (as evidenced by the 10-digit number on the top of the notice, used for internal purposes, to show that the notice was sent by first class mail), and the other was sent to Defendant at the Property by certified mail (as evidenced by the 20-digit U.S. Postal Service tracking number on the top of the notice). A list of five or more government-approved housing counseling agencies is appended to each copy of a 90-Day Notice. The copies of the 90-Day Notice submitted herewith were obtained from the electronic file created and maintained by Wells Fargo as a result of the practice described above. In 2011, it was also Wells Fargo's regular practice to utilize TrackRight to memorialize the mailing of notices to defaulted borrowers. The TrackRight transaction history (the "TrackRight Transaction History") shows that Wells Fargo mailed the 90-Day Notice to Defendant at the Property, by certified and first-class mail on October 30, 2011; it contains the same 10-digit and 20-digit tracking numbers as printed on the notices. The Mailbook also shows that Wells Fargo mailed the 90-Day Notice to Defendant by certified and first-class mail on October 30, 2011. The 90-Day Notice sent to Defendant at the Property by certified mail was attempted to be delivered on November 4, 2011, and again on November 30, 2011, but the letter was marked with "return to sender, unclaimed, unable to forward," as evidenced by the TrackRight Transaction History and the return image of the the (sic) unclaimed envelope and return receipt card. I am familiar with such practice in my capacity as Vice President Loan Documentation for Wells Fargo. Based upon this knowledge and my review of Wells Fargo's file for this Mortgage Loan, I attest that Wells Fargo's regular practice was adhered to her with respect to the 90-Day Notice. Copies of the 90-Day Notice were attached as Exhibit 5 to the Kruse Affidavit and are annexed hereto as Exhibit B, along with copies of (i) the Mailbooks, (ii) the TrackRight Transaction History, and (iii) the certified mail return image of the envelope and return receipt card.
5. On October 31, 2011, Wells Fargo filed proof of mailing of the 90-Day Notice ("Proof of Filing") with the New York State Department of Financial Services pursuant to RPAPL 1306. Copies of the Proof of Filing are annexed hereto as Exhibit C.
At issue is whether the evidence submitted by the plaintiff is sufficient to establish its right to foreclose. The defendant does not argue that the Pinnocks have not defaulted in making timely payments and does not contest that they have failed to make any payments for nearly six years. The issues raised by the defendant concern whether, despite her continuing default, the mortgage lender gave the Pinnocks proper and adequate notice of the bank's intention to commence this foreclosure action, and whether the notice itself complied with statutory requirements concerning the size of the font listing the housing agencies attached to the notice.
CPLR 4518 provides:
Business records.
(a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.
The Court of Appeals in People v. Guidice, 83 NY2d 630, 635, 612 NYS2d 350 (1994) explained that "the essence of the business records exception to the hearsay rule is that records systematically made for the conduct of business... are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of the conduct of the enterprise." (quoting People v. Kennedy, 68 NY2d 569, 579, 510 NYS2d 853 (1986)). It is a unique hearsay exception since it represents hearsay deliberately created and differs from all other hearsay exceptions which assume that declarations which come within them were not made deliberately with litigation in mind. Since a business record keeping system may be designed to meet the hearsay exception, it is important to provide predictability in this area and discretion should not normally be exercised to exclude such evidence on grounds not foreseeable at the time the record was made (see Trotti v. Estate of Buchanan, 272 AD2d 660, 706 NYS2d 534 (3rd Dept., 2000)).
The three foundational requirements of CPLR 4518(a) are: 1) the record must be made in the regular course of business—reflecting a routine, regularly conducted business activity, needed and relied upon in the performance of business functions; 2) it must be the regular course of business to make the records—(i.e. the record is made in accordance with established procedures for the routine, systematic making of the record); and 3) the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made (see People v. Kennedy, supra at 579-580)). The "mere filing of papers received from other entities, even if such papers are retained in the regular course of business, is insufficient to qualify the documents as business records." (People v. Cratsley, 86 NY2d 81, 90, 629 NYS2d 992 (1995)). The records will be admissible "if the recipient can establish personal knowledge of the maker's business practices and procedures, or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business." (State of New York v. 158th Street & Riverside Drive Housing Company, Inc., 100AD3d 1293, 1296, 956 NYS2d 196 (2012); leave denied, 20 NY3d 858 (2013)). In this regard with respect to mortgage foreclosures, a loan servicer's employee may testify on behalf of the mortgage lender and a representative of an assignee of the original lender can rely upon business records of the original lender to establish its claims for recovery of amounts due from the borrowers provided the assignee/plaintiff establishes that it relied upon those records in the regular course of business (Landmark Capital Inv. Inc. v. Li-Shan Wang, 94 AD3d 418, 941 NYS2d 144 (1st Dept., 2012); Portfolio Recovery Associates, LLC. v. Lall, 127 AD3d 576, 8 NYS3d 101 (1st Dept., 2015); Merrill Lynch Business Financial Services, Inc. v. Trataros Construction, Inc., 30 AD3d 336, 819 NYS2d 223 (1st Dept., 2006)). More recently, an additional requirement for admissibility appears to necessitate that the noteholder/loan servicer's employee allege that he/she was personally familiar with the plaintiff's record-keeping practices and procedures (see Aurora Loan Services, LLC, v. Baritz, 144 AD3d 618, 2016 NY Slip Op 07154 (2nd Dept., 2017); Deutsche Bank National Trust Co. v. Brewton, 140 AD3d 948, 34 NYS3d 463 (2nd Dept., 2016); Citibank, N.A. v. Cabrera, 130 AD3d 861, 14 NYS3d 420 (2nd Dept., 2015)).
As recently stated in the Appellate Division, Second Judicial Department decision in Citigroup, etc., v. Kopelowitz, et al., 2017 NY Slip Op 01331 (2nd Dept., 2/22/17): "There is no requirement that a plaintiff in a foreclosure action rely upon any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon (citations omitted)." The two affidavits from Wells Fargo's vice presidents of loan documentation provide the evidentiary foundation for establishing the mortgage lender's right to foreclose. Each affidavit sets forth the mortgage lender/service representative's review of the business records maintained by Wells Fargo; the fact that those books and records are made in the regular course of Wells Fargo's business; that it was the bank's regular course of business to maintain such records; that the records were made at or near the time the underlying transactions took place; and that the records were created by individuals with personal knowledge of the underlying transactions. The October 21, 2016 affidavit goes on to describe a dual tracking system maintained by the mortgage lender in the regular course of business referred to as "Mailbook" and "TrackRight", which required 10-digit specific and 20-digit specific tracking numbers affixed to the mortgage default notices and the RPAPL 1304 notices. Those specific tracking numbers related to the specific notices sent to the defaulting borrowers listing the manner in which each notice was performed ("certificate of mail" (first class mailing) or "certified") and the date and time of mailing. The vice president of loan documentation's October 21, 2016 affidavit states that in 2011 it was Wells Fargo's regular business practice to utilize the dual tracking systems ("Mailbook" & "TrackRight") and that the bank/service representative was familiar with the Wells Fargo 2011 regular practice which was adhered to in this instance. Based upon submission of these affidavits, the plaintiff has provided an admissible evidentiary foundation which satisfies the business records exception to the hearsay rule with respect to issues concerning service and mailing of notices required under the terms of the mortgage and in compliance with RPAPL 1304 & 1306 requirements.
With respect to RPAPL 1304, the plaintiff's proof consists of the two Wells Fargo affidavits stating that service was made in compliance with statutory requirements on October 30, 2011 which was more than 90 days prior to commencing this action on April 27, 2012, together with copies of the 90 day notices, the "Mailbook" and "TrackRight" historical tracking records detailing the first class and certified mailings tracking number, date and type of mailing and mailing history, copies of the certified mailing envelope and return receipt card with tracking number affixed, attempted delivery dates and unclaimed "returned to sender" notation, and a copy of the "Proof of Filing Statement" filed with the New York State Banking Department pursuant to RPAPL 1306 to confirm that the 90 pre-foreclosure notices were timely served upon the defendant and filed on October 31, 2011. Defense counsel's conclusory claim that the notices were not properly served on the defendant, is not supported by any relevant, admissible evidence sufficient to raise an issue of fact which would defeat plaintiff's summary judgment application (see PHH Mortgage Corp. v. Muricy, 135 AD3d 725, 24 NYS3d 137 (2nd Dept., 2016); HSBC Bank v. Espinal, 137 AD3d 1079, 28 NYS3d 107 (2nd Dept., 2016)).
With respect to the mortgage default notice, the plaintiff's proof consists of the two Wells Fargo affidavits stating that service of the default notice was made in compliance with paragraphs 9 & 18 of the mortgage by delivery via first class mail on October 30, 2011. Plaintiff also submits a copy of the default notice which sets forth the information required under the terms of the mortgage including the amount due to cure the mortgagors default, the day by which to cure the default and the admonition that in the event of the defaulting debtors failure to cure, the entire amounts due would be accelerated by the mortgage lender. Affixed to the notice was a ten-digit tracking number which corresponded to copies of the "Mailbook" and "TrackRight" historical tracking records detailing the first class mailing tracking number and the date of mailing. Defense counsel's conclusory assertion that the notice of default was not properly served is not supported by any relevant, admissible evidence sufficient to raise an issue of fact which would defeat plaintiff's summary judgment application (see PHH Mortgage Corp v. Muricy, supra; HSBC Bank v. Espinal; supra).
With respect to the issue of standing which is raised in the defendant's answer (but not asserted in her opposition papers), plaintiff has submitted sufficient evidence in the form of the affidavits from the Wells Fargo's vice presidents of loan documentation to prove Wells Fargo had standing as the holder of the promissory note which was indorsed to Wells Fargo by a representative of the original mortgage lender and was (and has been) in the plaintiff's continuous physical possession at all times including on the day the action was commenced (April 27, 2012)(see Aurora Loan Services v. Taylor, supra.; Wells Fargo Bank, N.A. v. Parker, supra.; U.S. Bank, N.A. v. Ehrenfeld, 144 AD3d 893, 2016 NY Slip Op 07639 (2nd Dept., 2016); GMAC Mortgage, LLC v. Sidberry, 144 AD3d 863, 2016 NY Slip Op 07623 (2nd Dept., 2016)).
With respect to defendant's remaining contentions concerning the size (font) type of the RPAPL 1304 required attachment to the notice of government approved housing counseling agencies and plaintiff's failure to update its OCA attorney affirmation, there is no statutory requirement that the list of housing agencies appended to the RPAPL 1304 notice be in fourteen-point type and no indication that the state legislature intended to mandate such a requirement as a condition precedent to commencing a foreclosure action. Nor is there any requirement that an updated attorney affirmation be filed to verify the accuracy of the plaintiff's prior court filings. Moreover, the defendant has failed to raise any further evidence to address his numerous remaining pleaded affirmative defenses and three counterclaim set forth in his answer in opposition to this motion. Those remaining defenses and the counterclaims must therefore be deemed abandoned and subject to dismissal (Citibank, N.A. v. Van Brunt Properties, LLC, 95 AD3d 1158, 945 NYS2d 330 (2nd Dept., 2012); Wells Fargo Bank Minnesota, N.A. v. Perez, 41 AD3d 590, 837 NYS2d 877 (2nd Dept., 2007)).
Finally, the bank has shown and the defendant Vivienne Pinnock does not dispute that she has defaulted under the terms of the mortgage by failing to make timely monthly mortgage payments since March 1, 2011. The bank, having proven entitlement to summary judgment, it is incumbent upon the defendant to submit relevant, evidentiary proof sufficiently substantive to raise genuine issues of fact concerning why the lender is not entitled to foreclose the mortgage. Defendant has wholly failed to do so. Accordingly the plaintiff's motion seeking an order granting summary judgment and for the appointment of a referee must be granted. The proposed order for the appointment of a referee has been signed simultaneously with the execution of this order. Dated: March 1, 2017 Hon. Howard H. Heckman Jr., J.S.C.