Opinion
060078/2013
04-27-2015
Bank of America, NA, Plaintiff, v. Candy Maeder, PNC BANK, NATIONAL ASSOCIATION, TOWN SUPERVISOR OF THE TOWN OF BABYLON and "JOHN DOE #1" through "JOHN DOE #10", the last ten names being fictitious and unknown to the plaintiff, the person or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.
FRENKEL LAMBERT Attys. For Plaintiff 53 Gibson St. Bay Shore, NY 11706 MARTIN & MOODIE LAW GROUP Attys. For Def. Maeder 325 E. Sunrise Hwy. Lindenhurst, NY 11757
FRENKEL LAMBERT
Attys. For Plaintiff
53 Gibson St.
Bay Shore, NY 11706
MARTIN & MOODIE LAW GROUP
Attys. For Def. Maeder
325 E. Sunrise Hwy.
Lindenhurst, NY 11757
Thomas F. Whelan, J.
Upon the following papers numbered 1 to 12read on this motionby plaintiff for accelerated judgments and an order appointing a referee to compute and cross motion by defendant Maeder to dismiss and/or other relief; Notice of Motion/Order to Show Cause and supporting papers 1 - 4; Notice of Cross Motion and supporting papers5-8; Opposition papers9-11; Reply papers; Other12 (non-military affidavit); (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (#001) by the plaintiff for accelerated judgments on its complaint, the deletion of certain party defendants and an order of reference is considered under CPLR 3212, 3215 and RPAPL § 1321 and is granted; and it is further
ORDERED that the cross motion (#002) by defendant, Candy Maeder, for an order denying plaintiff's motion and dismissing the plaintiff's complaint or in the alternative, pursuant to CPLR 3408, referring the matter to the foreclosure conference part for further settlement negotiations, among other things, is denied.
The plaintiff commenced this action on March 21, 2013 to foreclose the lien of a mortgage dated June 1, 2007 given by defendant Maeder to secure a mortgage of the same date in the principal amount of $350,200.00 to a predecessor-in-interest of the plaintiff. In its complaint, the plaintiff claims to be the holder of the note and asserts, among other things, that a default in payment occurred on December 1, 2008 and that such default has not been cured.
In response to the plaintiff's service of its summons and complaint upon defendant Maeder in April of 2013, said defendant appeared by counsel on April 24, 2013 and on May 8, 2013 filed an answer. Therein, defendant Maeder asserts some eleven affirmative defenses, one or more of which challenge the standing of the plaintiff to prosecute its claims for foreclosure and sale. In January of 2015, the defendant changed attorneys and appeared herein by her current counsel. The consent to change attorneys was not, however, filed in the court's E-Filing System until February 8, 2015, and there is no indication that it was served prior to that date upon the plaintiff's counsel.
Following the initialization of this action in August of 2013, by the filing of a request for judicial intervention by the plaintiff, the action was assigned to the specialized mortgage foreclosure conference part of this court. A conference of the type mandated by CPLR 3408 was first scheduled for February 28, 2014. For the next eight months, the plaintiff and defendant Maeder attempted to resolve the issues by pursuit of a loan modification without success. Following the last conference held in the specialized part on Ocober 15, 2014, the action was marked "not settled" and assigned to the IAS inventory of this court.
By motion returnable January 21, 2015, the plaintiff moved for an order awarding it the following relief: (1) summary judgment against the answering defendant and default judgments against the corporate defendants who did not appear by answer; (2) the deletion of the unknown defendants and a caption amendment to reflect same; and (3) the appointment of a referee to compute amounts due under the subject mortgage. After acquiring the plaintiff's consent to adjourn, defendant Maeder responded by serving a cross motion (#002) seeking dismissal of the complaint or a return of this action to the conference part or an order scheduling pre-trial disclosure.
For the reasons stated below, the plaintiff's motion (#001) is granted while the cross motion (#002) by defendant Maeder is denied.
Entitlement to a judgment of foreclosure is established, as a matter of law, where the plaintiff produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact (see Midfirst Bank v Agho , 121 AD3d 343, 991 NYS2d 623 [2d Dept 2014]; Plaza Equities , LLC v Lamberti , 118 AD3d 688, 986 NYS2d 843 [2d Dept 2014]; Emigrant Mtge. Co ., Inc. v Beckerman , 105 AD3d 895, 964 NYS2d 548 [2d Dept 2013]; Solomon v Burden , 104 AD3d 839, 961 NYS2d 535 [2d Dept 2013]; US Bank Natl. Ass'n. v Denaro , 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; Baron Assoc ., LLC v Garcia Group Enter ., 96 AD3d 793, 946 NYS2d 611 [2d Dept 2012]; Citibank , N.A. v Van Brunt Prop ., LLC , 95 AD3d 1158, 945 NYS2d 330 [2d Dept 2012]; HSBC Bank v Shwartz , 88 AD3d 961, 931 NYS2d 528 [2d Dept 2011]). This standard is, however, enlarged to include a demonstration that the plaintiff is possessed of the requisite standing to pursue its claims where, and only where, the defense of standing is due and timely asserted by a defendant possessed of such defense (see Deutsche Bank Natl. Trust Co. v Islar , 122 AD3d 566, 996 NYS2d 130 [2d Dept 2014]; Midfirst Bank v Agho , 121 AD3d 343, supra; Plaza Equities , LLC v Lamberti , 118 AD3d 688, supra; Kondaur Capital Corp. v McCary , 115 AD3d 649, 981 NYS2d 547 [2d Dept 2014]; Deutsche Bank Natl. Trust Co. v Whalen , 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Rivas , 95 AD3d 1061, 945 NYS2d 328 [2d Dept 2012]; Citimortgage , Inc. v Stossel , 89 AD3d 887, 888, 934 NYS2d 182 [2d Dept 2011]; U.S. Bank , N.A. v Adrian Collymore , 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]; Wells Fargo Bank Minn ., N.A. v Mastropaolo , 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007]).
Recent appellate cases emanating from the Appellate Division, Second Department concerning the issue of the standing of a foreclosure plaintiff have held as follows: "Generally, [i]n residential mortgage foreclosure actions, as here, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage and the unpaid note, and evidence of the default'" (internal citations omitted). However, "[w]here the plaintiff is not the original lender and standing is at issue, the plaintiff must establish that it is the owner or holder of both the note and mortgage seeking summary judgment must also provide evidence that it received both the mortgage and note by a proper assignment which can be established by the production of a written assignment of the note or by physical delivery to the plaintiff of the mortgage and note" ( US Bank Natl. Ass'n v Madero , 125 AD3d 757, 2015 WL 542170 [2d Dept 2015]; see Citimortgage , Inc. v Chow Ming Tung , 126 AD3d 841, 2015 WL 1213591 [2d Dept 2015]; U.S. Bank Natl. Ass'n v Guy , 125 AD3d 845, 2015 WL 668979 [2d Dept 2015]; Wells Fargo Bank , N.A. v Ali , 122 AD3d 726, 995 NYS2d 735 [2d Dept 2014]; Midfirst Bank v Agho , 121 AD3d 343, 991 NYS2d 623 [2d Dept 2014], supra; Bank of NY Mellon v Gales , 116 AD3d 723, 982 NYS2d 911 [2d Dept 2014]; Kondaur Capital Corp. v McCary , 115 AD3d 649, 650, 981 NYS2d 547 [2d Dept 2013]). Delivery of the note to a custodial agent of the plaintiff will suffice to establish the standing of a foreclosing plaintiff under the foregoing rule ( see Deutsche Bank Natl. Trust Co. v Whalen , 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013], supra; HSBC Bank USA , Natl. Ass'n v Sage , 112 AD3d 1126, 977 NYS2d 446 [3d Dept 2013]; Chase Home Fin ., LLC v Miciotta , 101 AD3d 1307, 1307, 956 NYS2d 271 [3d Dept 2012]; Wells Fargo Bank , N.A. v Wine , 90 AD3d 1216, 1217, 935 NYS2d 664 [3d Dept 2011]).
Appellate case authorities have further instructed that delivery of a note may be established in the following ways: 1) physical delivery of the note to the plaintiff prior to commencement of the action (see Kondaur Capital Corp. v McCary , 115 AD3d 649, 981 NYS2d 547 [2d Dept 2013], supra; Deutsche Bank Natl. Trust Co. v Whalen , 107 AD3d 931, 932, 969 NYS2d 82 [2d Dept 2013], supra; Mortgage Elec. Registration Sys ., Inc. v Coakley , 41 AD3d 674, 838 NYS2d 622 [2d Dept 2007]); 2) delivery of an endorsed note to the endorsee or bearer on a specific date that is prior to the commencement of the action, from which it may be reasonably inferred that physical delivery of the note was made to the plaintiff by the endorser (see Aurora Loan Serv ., LLC v Taylor , 114 AD3d 627, 980 NYS2d 475 [2d Dept 2014]; Mortgage Elec. Registration Sys ., Inc. v Coakley , 41 AD3d 674, supra); or 3) pre-commencement possession of the note by a custodial agent of a trustee plaintiff named in a pooling and servicing agreement (see HSBC Bank USA , Natl. Ass'n v Sage , 112 AD3d 1126, 977 NYS2d 446 [3d Dept 2013], supra).
Here, the moving papers of the plaintiff established a prima facie entitlement to summary judgment dismissing the affirmative defenses asserted in the answer of defendant Maeder and for summary judgment on its complaint against her as they included copies of the mortgage, the unpaid note and due evidence of a default under the terms thereof (see CPLR 3212; RPAPL § 1321; Midfirst Bank v Agho , 121 AD3d 343, 991 NYS2d 623 [2d Dept 2014], supra; Plaza Equities , LLC v Lamberti , 118 AD3d 688, 986 NYS2d 843 [2d Dept 2014]; supra; W & H Equities LLC v Odums , 113 AD3d 840, 978 NYS2d 910 [2d Dept 2014]). In addition, the moving papers established, prima facie, that the plaintiff was sufficiently possessed of the requisite standing to prosecute its claims for foreclosure and sale in this action by virtue of its receipt of a June 11, 2007 delivery of the note that was endorsed in blank (see Aurora Loan Serv ., LLC v Taylor , 114 AD3d 627, 980 NYS2d 475 [2d Dept 2014], supra; Mortgage Elec. Registration Sys ., Inc. v Coakley , 41 AD3d 674, 838 NYS2d 2007, supra). Moreover, the plaintiff submitted further proof that the note was delivered to the office of its counsel for safekeeping on April 13, 2011, some 23 months prior to the commencement of this action in March of 2013.
The moving papers further established, prima facie, the plaintiff's compliance with the pre-action contractual and statutory notices of default obligations imposed upon it under the provisions the mortgage and RPAPL § 1304 on January 16, 2009 and December 14, 2012, respectively (see Deutsche Bank Natl. Trust Co. v Quinn , 120 AD3d 609, 990 NYS2d 885 [2d Dept 2014]; Emigrant Mtge. Co ., Inc. v Gosdin , 119 AD3d 639, 989 NYS2d 609 [2d Dept 2014]; Emigrant Mtge. Co ., Inc. v Persad , 117 AD3d 676, 985 NYS2d 608 [2d Dept 2014]). Also sufficiently established by the plaintiff in its moving papers was that none of remaining defenses asserted in the answer of the defendant have merit ( see Grand Pacific Finance Corp. v 97-111 Hale , LLC , 123 AD3d 764, 1 NYS3d 115 [2d Dept 2014]; Katz v Miller , 120 AD3d 768, 991 NYS2d 346 [2d Dept 2014]; Becher v Feller , 64 AD3d 672, 677, 884 NYS2d 83 [2d Dept 2009]).
It was thus incumbent upon the answering defendant to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of the affirmative defenses asserted in her answer or otherwise available to her (see Nationstar Mtge ., LLC v Silveri , 126 AD3d 864, 2015 WL 1212321 [2d Dept 2015]; Flagstar Bank v Bellafiore , 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012]; Grogg Assocs. v South Rd. Assocs., 74 AD3d 1021 907 NYS2d 22 [2d Dept 2010]; Wells Fargo Bank v Karla , 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]). A review of the cross moving papers and opposing papers submitted by the defendant reveals no such questions of fact were raised.
The contention of defendant's counsel who asserts that the complaint must be dismissed because the plaintiff cannot demonstrate ownership of the note and mortgage is rejected as lacking in merit. Ownership of the note is not imperative to the establishment of standing as one must be either the owner or the holder of the note and mortgage at the time of the commencement of the action (see Citimortgage , Inc. v Chow Ming Tung , 126 AD3d 841, 2015 WL 1213591 [2d Dept 2015], supra; U.S. Bank Natl. Ass'n v Guy , 125 AD3 845, 2015 WL 668979 [2d Dept 2015], supra; HSBC Bank USA , Natl. Ass'n v Gilbert , 120 AD3d 756, 991 NYS2d 358 [2d Dept 2014]; Nationstar Mtge ., LLC v Davidson , 116 AD3d 1294, 983 NYS2d 705 [3d Dept 2014], supra; Bank of NY Mellon v Gales , 116 AD3d 723, 982 NYS2d 911 [2d 2014], supra; Kondaur Capital Corp. v McCary , 115 AD3d 649, 650, 981 NYS2d 547 [2d Dept 2013], supra). The reason underlying this rule is attributable to the nature of holder status which arises under the Uniform Commercial Code and to appellate case authorities that have recently instructed that "the holder of an instrument, whether or not he or she is the owner, may transfer or negotiate it and discharge it or enforce payment in his or her own name ( Wells Fargo Bank , NA v Ostiguy , ___ AD3d ___, 2015 WL 1565673 [3d Dept 2015], quoting UCC 3—301 ; see also Glens Falls Indem. Co. v Chase Natl. Bank , 257 NY 441, 445 [1931]).
Equally unavailing is defense counsel's claim that ownership of the note may not be established by an undated endorsement in blank. Holder status may indeed be established by a pre-action delivery to the plaintiff of the mortgage note endorsed especially in its favor or in blank (see U.S. Bank Natl. Ass'n v Guy , 125 AD3d 845, 2015 WL 668979 [2d Dept 2015], supra; Nationstar Mtge ., LLC v Davidson , 116 AD3d 1294, 983 NYS2d 705 [3d Dept 2014]; Cadlerock Joint Venture , L.P. v Tracey , 115 AD3d 692, 981 NYS2d 572 [2d Dept 2014]; Aurora Loan Serv ., LLC v Taylor , 114 AD3d 627, 980 NYS2d 475 [2d Dept 2014], supra; Mortgage Elec. Registration Sys ., Inc. v Coakley , 41 AD3d 674, 838 NYS2d 622 [2d Dept 2008], supra; Deutsche Bank Natl. Trust Co. v Pietranico , 33 Misc 3d 528, 928 NYS2d 818 [Sup. Ct. Suffolk County 2011], aff'd, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013]; cf. Wells Fargo Bank , N.A. v Burke , 125 AD3d 765, 5 NYS3d 107 [2d Dep 2015). Delivery of the note in such fashion effects a concomitant transfer of the mortgage under the principal/incident rule and vests the plaintiff with standing to prosecute its claims ( see Wells Fargo Bank , N.A.v Parker , 125 AD3d 848, 2015 WL 668963 [2d Dept 2015]; PHH Mtge. Corp. v Israel , 120 AD3d 1329, 992 NYS2d 355 [2d Dept 2014]; Nationstar Mtge ., LLC v Davidson , 116 AD3d 1294, 983 NYS2d 705 [3d Dept 2014], supra; MLCFC 2007-9 Mixed Astoria , LLC v 36-02 35th Ave. Dev ., LLC , 116 AD3d 745, 983 NYS2d 604 [2d Dept 2014]). Such is the case here which renders defense counsel's challenges to the written assignment of the mortgage by a nominee of the original lender inconsequential and irrelevant ( see Deutsche Bank Natl. Trust Co. v Whalen , 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013], supra; see also HSBC Bank USA , Natl. Ass'n v Sage , 112 AD3d 1126, 977 NYS2d 446 [3d Dept 2013], supra).
Similarly lacking in merit is the assertion by defense counsel that the standing of the plantiff is an element of its claim. It is now well settled that a defense premised upon a lack of standing is merely an affirmative defense which must be timely raised by a defendant possessed of such defense or it is waived (see CPLR 3018[b]; CPLR 3211[e]; HSBC Bank USA , N.A. v Forde , 124 AD3d 840, 2 NYS3d 561 [2d Dept 2015]; Deutsche Bank Natl. Trust Co. v Islar , 122 AD3d 566, 996 NYS2d 130 [2dDept 2014]; JP Morgan Mtge. Acquisition Corp. v Hayles , 113 AD3d 821, 979 NYS2d 620 [2d Dept 2014]; Deutsche Bank Trust Co. Americas v Cox , 110 AD3d 760, 973 NYS2d 662 [2d Dept 2013]; U.S. Bank Natl. Ass'n v Denaro , 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012] supra; Capital One , N.A. v Knollwood Prop. II , LLC , 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]; Countrywide Home Loans , Inc. v Delphonse , 64 AD3d 624, 883 NYS2d 135 [2d Dept 2009]; Wells Fargo Bank Minn ., N.A. v Mastropaolo , 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007], supra). The defense of standing is thus not jurisdictional in nature (see id; see also Wells Fargo Bank , N.A. v Gioia , 114 AD3d 766, 980 NYS2d 535 [2d Dept 2014]; Citimortgage , Inc. v Friedman , 109 AD3d 573, 970 NYS2d 706 [2d Dept. 2013]; HSBC Bank USA , N.A. v Taher , 104 AD3d 815, 962 NYS2d 301 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Pietranico , 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013], supra; US Bank Natl. Ass'n v Tate , 102 AD3d 859, 958 NYS2d 722 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Hunter , 100 AD3d 810, 954 NYS2d 181 [2d Dept 2012]; Bank of New York v Alderazi , 99 AD3d 837, 951 NYS2d 900 [2d Dept 2012]; U.S. Bank v Emmanuel , 83 AD3d 1047, 921 NYS2d 320 [2d Dept 2011]).
Moreover, the prosecution of a claim for foreclosure and sale by one without standing is not a jurisdictional defect nor an actionable wrong, as the claimant may prevail even in the absence of standing (see Deutsche Bank Natl. Rust Co. v Islar , 122 AD3d 566, 996 NYS2d 130[2d Dept 2014], supra; Bank of New York v Cepeda , 120 AD3d 451, 989 NYS2d 910 [2d Dept 2014]; Wells Fargo Bank Minn ., N.A. v Mastropaolo , 42 AD3d 239, 242, 837 NYS2d 247 [2d Dept 2007], supra; see also US Bank , NA v Reed , 38 Misc 3d 1206, 967 NYS2d 870 [Sup. Ct. Suffolk County 2013]). Nor does the prosecution of a claim for foreclosure and sale by one without standing vitiate the debt or otherwise affect, adversely, the validity of the mortgage (see Homar v American Home Mtge. Acceptance , Inc ., 119 AD3d 900, 989 NYS2d 856 [2d Dept 2014]). To the extent that counsel for defendant Maeder contends otherwise, those contentions are rejected as wholly lacking in merit.
Defendant Maeder, through her counsel, purports to assert a jurisdictional defense that is denominated as one sounding in a lack of subject matter jurisdiction. However, this claim lacks merit, as it is well settled law that "subject matter jurisdiction has been defined as the power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question'" ( Thrasher v United States Liab. Ins. Co ., 19 NY2d 159, 166, 278 NYS2d 793 [1967] quoting Hunt v Hunt , 72 NY 217, 229 [1878]). As a court of original, unlimited and unqualified jurisdiction (see Kagen v Kagen , 21 NY2d 532, 537, 289 NYS2d 195 [1968]), this court is vested with general original jurisdiction and is competent to entertain all causes of actions (see McKinney's NY Const. Art. 6, § 7[a]), and it may do so unless specifically proscribed elsewhere in our State Constitution or in the Constitution of the United States or under some pre-emptive federal statute (see Thrasher v United States Liab. Ins. Co., 19 NY2d 159, supra). Neither an act of our state legislature nor contractual terms between parties can divest this court of its general original jurisdiction (see Pollicina v Misericordia Hosp. Med. Ctr ., 82 NY2d 332, 604 NYS2d 879 [1993]; Lischinskaya v Carnival Corp ., 56 AD3d 116, 865 NYS2d 334 [2d Dept 2008]).
That this court's general original jurisdiction extends to mortgage foreclosure actions is unquestionable (see Wells Fargo Bank Minn ., N.A. v Mastropaolo , 42 AD3d 239, 242-244,837 NYS2d 247 [2d Dept 2007], supra; Security Pacific Natl. Bank v Evans , 31 AD3d 278, 820 NYS2d 2 [1st Dept 2006]). The opposing/cross moving papers of defendant Maeder failed to demonstrate that this court has been divested of its general, original, subject matter jurisdiction over this mortgage foreclosure action.
Indeed, a closer look at this subject matter defense reveals that its is nothing more than recasting of the standing defense that is premised upon a purported illegal splitting of the mortgage from the note due to its securitization or under the terms of the written assignment of mortgage. However, claims of violations of the principal/incident rule, and/or improper securitization or improper assignments have been held to be without merit in a host of recent controlling or persuasive case authorities (see Homar v American Home Mtge. Acceptance , Inc ., 119 AD3d 900, 989 NYS2d 856 [2d Dept 2014], supra; Bank of New York Mellon v Gales , 116 AD3d 723, 982 NYS2d 911 [2d Dept 2014], supra; Brown v Deutsche Bank Natl. Trust Co., 120 AD3d 440, 991 NYS2d 511 [1st Dept 2014]; Rajamin v Deutsche Bank Natl., 757 F3d 79 [2d Cir, 2014]; Ocampo v JP Morgan Chase Bank , N.A., 2015 WL 1345282 [E.D.NY 2015]; Barnett v Countrywide Bank , 2014 WL 6603986 [E.D.NY 2014]; Zutel v Wells Fargo Bank , 2014 WL 4700022 [E.D.NY 2014]; Tran v Bank of New York , 2014 WL 1225575 [S.D.NY 2014]; Berezovskaya v Deutsche Bank Natl. Trust Co., 2014 WL 4471560 [E.D.NY 2014], findings adopted, Berezovskaya v Deutsche Bank Natl. Trust Co., 2014 WL 4470786 [E.D.NY 2014]; Pollack v Bank of America , 2013 WL 4799264 [S.D.NY 2013]; U.S. Bank Natl. Ass'n v Duthie , 45 Misc 3d 1218[A] 2014 WL 6434511 [Sup.Ct. Kings County 2014]; Central Mtge. v Jahnsen 2014 WL 4785746 [Sup. Ct. Suffolk County 2014]).
Defendant Maeder's challenges to the affidavit of merit by the plaintiff's officer are rejected as wholly unavailing. The factual allegations set forth in such affidavit sufficiently established the admissibility of the affiant's statements under the business records exception to the hearsay rule (see Portfolio Recovery Assoc ., LLC , Plaintiff-Respondent v Richard , ___ AD3d ___, 2015 WL 1781884 [1st Dept 2015]; Wells Fargo Bank , N.A. v. Arias , 121 AD3d 973, 995 NYS2d 118 [2d Dept 2014]; K & K Enter. Inc. v Stemcor USA Inc ., 100 AD3d 415, 954 NYS2d 512 [1st Dept 2012]; Landmark Capital Inv ., Inc. v Li-Shan Wang , 94 ADd3d 418, 941 NYS2d 144 [1st Dept 2012]; Merrill Lynch Bus. Fin. Serv . , Inc. v Trataros Constr ., 30 AD3d 336, 819 NYS2d 223 [1st Dept 2006]; cf., US Bank Natl. Ass'n v Madero , 125 AD3d 757, 2015 WL 542170 [2d Dept 2015], supra).
Also unavailing are counsel's claims that the plaintiff failed to issue the pre-action ninety day notice as required by RPAPL § 1304, as the record is replete with due proof that plaintiff satisfied the ninety day notice requirements by its issuance and service by first class, regular and certified mail of a notice addressed to the defendant at the mortgaged premises and to a last known address (see CPLR 1304; Deutsche Bank Natl. Trust Co. v Quinn , 120 AD3d 609, 990 NYS2d 885 [2d Dept 2014], supra; Emigrant Mtge. Co ., Inc. v Gosdin , 119 AD3d 639, 989 NYS2d 609 [2d Dept 2014], supra; Emigrant Mtge. Co ., Inc. v Persad , 117 AD3d 676, 985 NYS2d 608 [2d Dept 2014], supra). The absence of an affidavit from defendant Maeder denying receipt of such notices is fatal to her counsel's claim that the plaintiff failed to comply with this statutory condition precedent (see Grogg v South Rd. Assoc ., L.P ., 74 AD3d 1021, 1021—1022, 907 NYS2d 22 [2d Dept 2010], supra; see also Emigrant Mtge. Co ., Inc. v Gosdin , 119 AD3d 639, supra; Emigrant Mtge. Co ., Inc. v Persad , 117 AD3d 676, supra).
Both defendant Maeder and her counsel contend that the action should be referred back to the specialized mortgage foreclosure conference part. These contentions are based upon nuanced claims that the plaintiff failed to negotiate in good faith for the duration of the eight month period when this action was assigned to such part and that it failed to offer a "reasonable loan modification package" (see ¶ 9 of defendant Maeder's affidavit in support of her cross motion). By virtue of these circumstances, defendant Maeder claims an entitlement to a return to the specialized conference part where she intends to engage the plaintiff in meaningful settlement negotiations as contemplated by CPLR 3408.
The court, however, rejects these contentions and denies the defendant's request for a return of this action to the specialized mortgage foreclosure conference part, as no basis in law or fact has been proffered in support thereof. CPLR 3408 mandates only that one settlement conference be held. While the court is authorized by rule to conduct further conferences in the excise of its discretion (see 22 NYCRR 202—12—a), the facts of this case do not warrant further conferences. Even if it were otherwise, the vague allegations of a purported entitlement to a loan modification that are advanced by the defendant are unavailing (see CPLR 3408; Citibank , N.A. v Barclay , 124 AD3d 174, 999 NYS2d 375, 2014 WL 6978048 [1st Dept 2014]; Federal Natl. Mtge. Ass'n v Cappelli , 120 AD3d 621, 990 NYS2d 856 [2d Dept 2014]; Wells Fargo Bank , N.A. v Meyers , 108 AD3d 9, 966 NYS2d 108 [2d Dept 2013]; Wells Fargo Bank , N.A. v Van Dyke , 101 AD3d 638, 958 NYS2d 331 [1st Dept 2012]; Bethpage Fed. Credit Union v Fiorello , ___ Misc 3d ___, 2015 WL 894844 [Sup. Ct. Suffolk County 2015]).
The court further rejects defense counsel's claim that the instant motion is premature due to the absence of discovery. While CPLR 3212(f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated ( see Sepulveda v Cammeby's Mgt. Co ., LLC , 119 AD3d 927, 2014 WL 3732474 [2d Dept 2014]; Jones v American Commerce Ins. Co., 92 AD3d 844, 845, 939 NYS2d 115 [2d Dept 2013]), the movant must "offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff ( Martinez v Kreychmar , 84 AD3d 1037, 923 NYS2d 648 [2d Dept 2011]; see Garcia v Lenox Hill Florist III , Inc ., 120 AD3d 1296, 993 NYS2d 86 [2d Dept 2104]; Seaway Capital Corp. v 500 Sterling Realty Corp ., 94 AD3d 856, 941 NYS2d 871 [2d Dept 2012]). In addition, the party asserting the rule must demonstrate that he or she made reasonable attempts to discover facts which would give rise to a genuine triable issue of fact on matters material to those at issue ( see KeyBank Natl. Ass'n v Chapman Steamer Collective , LLC , 117 AD3d 991, 986 NYS2d 598 [2d Dept 2014]; Swedbank , AB v Hate Ave. Borrower , LLC , 89 AD3d 922, 932 NYS2d 540 [2d Dept 2011]; Zheng v Evans , 63 AD3d 791, 881 NYS2d 461 [2d Dept 2009]).
Here, the defendant failed to meet this standard. There was no demonstration that discovery may lead to relevant evidence or any demonstration of a non-compliance with court ordered discover (see Daniels v City of New York , 117 AD3d 981, 986 NYS2d 516 [2d Dept 2014]; cf., TD Bank , N.A. v 126 Spruce St ., LLC , 117 AD3d 716, 985 NYS2d 599 [2d Dept 2014]; HSBC Bank USA , N.A. v Arias , 112 AD3d 785, 977 NYS2d 323 [2d Dept 2013]). Nor was it established that facts essential to justify opposition were exclusively in the knowledge of the plaintiff as the defendant's familiarity with the terms of the note and mortgage and her knowledge and participation in the events, occurrences and transactions that form the basis of the plaintiff's pleaded claim for relief warrant the rejection of any claim of prematurity (see KeyBank Natl. Ass'n v Chapman Steamer Collective , LLC , 117 AD3d 991, supra). Furthermore, the defendant failed to sufficiently demonstrate that reasonable attempts to discover facts which would give rise to a triable issue of fact on the plaintiff's claims or as to any viable defenses belonging to the defendant were undertaken by her or that further discovery might lead to relevant evidence concerning such claim or viable defenses (see CPLR 3212[f]; KeyBank Natl. Ass'n v Chapman Steamer Collective , LLC , 117 AD3d 991, supra; Swedbank , AB v Hate Ave. Borrower , LLC , 89 AD3d 922, supra). Defendant's claim of prematurity is thus rejected as unmeritorious.
The court has considered the remaining claims posited in support of the cross motion by defendant Maeder and in opposition to the plaintiff's motion in chief and finds them to be unavailing. The court thus denies in its entirety the defendant's cross motion (#002). The court further finds that the plaintiff is entitled to summary judgment on its complaint and dismissal of the affirmative defenses set forth in the answer of defendant Maeder. Those portions of this motion wherein the plaintiff seeks such relief are thus granted.
Those portions of the instant motion wherein the plaintiff seeks an order dropping as party defendants the unknown defendants listed in the caption and an amendment of the caption to reflect same are granted.
The moving papers further established the default in answering on the part of the corporate defendants named in the caption, neither of whom served answers to the plaintiff's complaint (see HSBC Bank USA , N.A. v Alexander , 124 AD3d 838, 2015 WL 361008 [2d Dept 2015]; U.S. Bank , N.A. v Razon , 115 AD3d 739, 740, 981 NYS2d 571 [2d Dept 2014]). Accordingly, the defaults of all such defendants are hereby fixed and determined. Since the plaintiff has been awarded summary judgment against the sole answering defendant and has established a default in answering by the remaining defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see RPAPL § 1321; Bank of East Asia , Ltd. v Smith , 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]; Vermont Fed. Bank v Chase , 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; LaSalle Bank , NA v Pace , 31 Misc 3d 627, 919 NYS2d 794 [Sup. Ct. Suffolk County 2011], aff'd, 100 AD3d 970, 955 NYS2d 161 [2d Dept 2012]).
The proposed order of reference submitted with the moving papers, as modified by the court to reflect the terms of this order, has been marked signed.
Dated: April2015_______________________________
THOMAS F. WHELAN, J.S.C.