Opinion
8674/12
09-21-2015
U.S. Bank National Association, Plaintiff, v. Estelle Miller, Lucia Salmond, New Style Development, YDM Capital Inc., Platinum Financial Services Corp., City of New York Environmental Control Board, Board of Managers of 1607 Bergen Condominiums, "John Doe", "Richard Roe", "Jane Doe", "Cora Coe", "Dick Moe" and "Ruby Poe", the six, defendants named in quotation marks being intended to designate tenants or occupants in possession of the herein described premises or portions thereof, if any there be, said names being fictitious, their true name being unknown to plaintiff, Defendants.
Attorney for Plaintiff: Jonathan M. Cohen, Esq. Stein, Wiener & Roth, LLP Suite 113 1 Old Country Road Carle Place, NY 11514-9811 Attorney for Defendant: Alice A. Nicholson, Esq. 26 Court Street, Suite 1307 Brooklyn, NY 11242
Attorney for Plaintiff:
Jonathan M. Cohen, Esq.
Stein, Wiener & Roth, LLP
Suite 113
1 Old Country Road Carle Place, NY 11514-9811
Attorney for Defendant:
Alice A. Nicholson, Esq.
26 Court Street, Suite 1307
Brooklyn, NY 11242
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff U.S. Bank National Association (hereinafter USBNA), filed on August 1, 2014, under motion sequence number one, for an order: (1) striking the joint answer of defendants Estelle Miller and Lucia Salmond (hereinafter the mortgagors) and granting it summary judgment against them pursuant to CPLR 3212; (2) granting a default judgment against all other non-answering defendants pursuant to CPLR 3215; (4) appointing a referee to compute pursuant to the RPAPL 1321; and (5) amending the caption by striking the names of defendants John Doe, Richard Roe, Jane Doe, Cora Coe, Dick Moe and Ruby Poe; and by substituting Shanti Stevens for defendant Jane Doe.
Citi respondents notice of motion
Affidavit in support
Exhibits A-M
Affirmation in support
Exhibits A-L
Petitioner's notice of cross motion
Petitioner's notice of cross motion also serves as additional opposition to the Citi respondents' motion. Petitioner also submitted an affirmation in opposition.
Exhibits 1-3
Petitioner's affirmation in opposition
Exhibits 1-2
Citi respondents reply affirmation
BACKGROUND
On April 25, 2012, USBNA commenced the instant mortgage foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office.
The complaint alleges in pertinent part that on July 18, 2008, defendants Estelle Miller and Lucia Salmond executed and delivered to Fairmont Funding, LTD (hereinafter FFL), a note in its favor in the principal sum of $399,200.00 (hereinafter the note). On that same date, they executed and delivered to Mortgage Electronic Registration System (hereinafter MERS), as nominee for FFL, a mortgage (hereinafter the mortgage) on a condominium property known as 1615 Bergen Street, No. 3, Brooklyn, New York 11213 (hereinafter the subject property) to secure the note.
The complaint further alleges that the mortgagors defaulted on making payments due and owing on the note from September 1, 2011 and thereafter and that USBNA sent a letter dated October 13, 2011 to the mortgagors. The letter notified the mortgagors of their default, of their opportunity to cure it and of USBNA's intent to accelerate the mortgage if they failed to do so.
USBNA commenced the instant foreclosure action based on the mortgagors' alleged failure to cure their default.
The mortgagors interposed a verified answer dated May 10, 2012, containing general denial and twenty-five denominated affirmative defenses. Of the twenty-five affirmative defenses, three are of specifically important to this motion. The second affirmative defense specifically alleges that USBNA lacks standing to maintain the action. The fourteenth affirmative defense alleges that USBNA has failed to comply with the notice requirements of RPAPL 1304. The fifteenth affirmative defense alleges that USBNA has improperly accelerated the mortgage loan.
The mortgagers are the only defendants who have answered the complaint and who have submitted opposition to the instant motion.
By decision and order dated January 23, 2015, the Court ordered an expedited trial pursuant to CPLR 3212 (c) of the mortgagors' second affirmative defense that USBNA lacks standing to maintain the action. All other branches of USBNA's motion were stayed pending resolution of the issue of its standing.
Pursuant to CPLR 3212 (c), the court may order an immediate trial of a motion based on any of the grounds enumerated in subdivision (a) or (b) of rule 3211. Where standing is put into issue by a defendant's answer, a plaintiff must prove its standing if it is to be entitled to relief (Bank of America N.A. v Paulsen, 125 AD3d 909 [2nd Dept 2015]).
THE TRIAL
The bench trial was conducted on April 28, 2015. USBNA admitted three exhibits and called Jonathan Huff, its litigation analyst, as its sole witness. The three admitted exhibits were the note, the mortgage and an assignment of the mortgage.
By decision and order dated April 28, 2015, the Court directed the parties: (1) to prepare proposed findings of fact pursuant to CPLR 4123; (2) to serve them on each other on or before June 29, 2015; and (3) to submit them to the Court on or before July 6, 2015. Both parties complied.
FINDINGS OF FACT
After considering all the documentary and testimonial evidence submitted at trial the Court makes the following findings of fact.
1.On July 18, 2008, Estelle Miller and Lucia Salmond executed and delivered to FFL the note whereby they promised to repay the principal sum of $399,200.00.
2.On July 18, 2008, Estelle Miller and Lucia Salmond executed and delivered the mortgage in the original amount of $399,200.00 encumbering the condominium property known as 1615 Bergen Street, No. 3, Brooklyn, New York 11213.
3.The lender named on the mortgage was MERS as nominee for FFL.
4.On October 7, 2008, the mortgage was recorded in the Kings County Register in CRFN# 2008000396042.
5.By an undated indorsement, Mordechai D. Husarsky, the managing director of FFL endorsed the note to USBNA.
6.By assignment of mortgage dated March 27, 2012, and recorded on April 25, 2012, MERS, as nominee for FFL, assigned the mortgage to USBNA.
7.Jonathan Huff (hereinafter Huff), as a legal analyst and as USBNA's employee for years, has knowledge of USBNA's business practices, procedures and record keeping as well as access to its business records.
8.Huff's duties include reviewing USBNA's records, loan documents, breach letters, payment histories, borrower correspondences, and pleadings, to ensure that USBNA is properly foreclosing on the property.
9.Huff ascertained that on July 29, 2008, USBNA acquired physical possession of the note from information and notations contained in the "Acquisition Department Screen" of USBNA's servicing platform.
DISCUSSION
Standing
A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is both the holder or assignee of the mortgage and the holder or assignee of the underlying note at the time the action is commenced (US Bank N.A. v Faruque, 120 AD3d 575 [2nd Dept 2014] citing Kondaur Capital Corp. v McCary, 115 AD3d 649, 650, [2nd Dept 2014]). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation (see Aurora Loan Servs., LLC v Taylor, 114 AD3d 627 [2nd Dept 2014]).
As a general matter, once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note (US Bank N.A. v Faruque, 120 AD3d 575 [2nd Dept 2014] citing Bank of NY v Silverberg, 86 AD3d 274 at 280 [2nd Dept 2011]). However, the transfer of the mortgage without the debt is a nullity, and no interest is acquired by it (see Bank of NY Mellon v Gales, 116 AD3d 723 [2nd Dept 2014] ), because a mortgage is merely security for a debt or other obligation and cannot exist independently of the debt or obligation (US Bank N.A. v Faruque, 120 AD3d 575 [2nd Dept 2014] citing Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 911[2nd Dept 2013]).
The critical issue is whether the record demonstrates a basis for finding that USBNA had standing to commence this mortgage foreclosure action. The physical delivery of the note to the plaintiff from its owner prior to commencement of a foreclosure action may, in certain circumstances, be sufficient to transfer the mortgage obligation and create standing to foreclose (Aurora Loan Services, LLC v Taylor,
25 NY3d 355 [2015]; citing Bank of NY Mellon Trust Co. NA v Sachar, 95 AD3d 695 [1st Dept 2012]).
Huff's credible testimony establishes that FFL, the original lender, specially indorsed the note directly to USBNA. Although the endorsement was undated and there was no evidence regarding the manner or method that the note was delivered to USBNA, the preponderance of the evidence establishes that on July 29, 2008, prior to the April 25, 2012 commencement of the foreclosure action, USBNA acquired and obtained possession of the note from FFL. From these facts it can reasonably be inferred that physical delivery of the note was made to USBNA before the action was commenced (Aurora Loan Services, LLC v Taylor, 25 NY3d 355 [2015] citing Aurora Loan Services, LLC v Taylor, 114 AD3d 627at 629 [2nd Dept 2014]).
Although the better practice would have been for USBNA to offer testimony explaining how it came into possession of the note in order to clarify the situation completely, the Court concludes that, under the circumstances of this case USBNA has established its standing to maintain the instant foreclosure action (Aurora Loan Services, LLC v Taylor, 25 NY3d 355 [2015]). Accordingly, the stay is lifted and the other branches of USBNA's motion are determined by this decision and order. USBNA's Motion to Amend the Caption
USBNA seeks an order amending the caption by striking the names of defendants John Doe, Richard Roe, Jane Doe, Cora Coe, Dick Moe and Ruby Poe and by substituting Shanti Stevens for defendant Jane Doe.
This branch of its motion is unopposed and is supported by the affirmation of it counsel, Jonathan M. Cohen (hereinafter Cohen). Therein Cohen alleges that John Doe, Richard Roe, Jane Doe, Cora Coe, Dick Moe and Ruby Poe are not necessary parties and were not served with the commencement papers. He also alleges that Shanti Stevens is a tenant of and was served with the commencement papers at the property. The Court sees no prejudice to any party by granting the request. Accordingly, the names of defendants John Doe, Richard Roe, Jane Doe, Cora Coe, Dick Moe and Ruby Poe Doe are stricken from the caption and the action is discontinued against them pursuant to CPLR 3217(d). Furthermore, the name of Shanti Stevens is substituted for the name of defendant Jane Doe (see Deutsche Bank Nat. Trust Co. v Islar, 122 AD3d 566 (2nd Dept 2014) citing CPLR 1024; Flagstar Bank v Bellafiore, 94 AD3d 1044, 1046 [2nd Dept 2012]). USBNA's Motion for Summary Judgment against the Mortgagors
USBNA seeks an order pursuant to CPLR 3212 granting summary judgment in its favor against Estelle Miller and Lucia Salmond, the mortgagors. 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 issues of fact from the case ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In 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 ( see W & H Equities LLC v Odums, 113 AD3d 840 [2nd Dept 2014]).
Where the plaintiff is not the original lender and standing is at issue, the plaintiff seeking summary judgment must also provide evidence that it received both the mortgage and note by a proper assignment or by physical delivery to the plaintiff of the mortgage and note (see Kondaur Capital Corp. v McCary, 115 AD3d 649 [2nd Dept 2014]). The Court has already found that USBNA has standing to commence the instant residential mortgage foreclosure action. If the plaintiff makes a prima facie showing, the burden shifts to the defendants to demonstrate " the existence of a triable issue of fact as to a bona fide defense to the action' " (Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793 [2nd Dept 2012], quoting Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467 [2nd Dept 1997]).
This branch of its motion is supported by, among other things, Cohen's affirmation, and an affidavit of its officer, Angela M. Ward (hereinafter Ward). The mortgagors' fourteenth affirmative defense claims that the plaintiff failed to comply with the notice requirements of RPAPL 1304. The fifteenth affirmative defense claims that the plaintiff or its purported predecessors in interest improperly accelerated the mortgage loan. USBNA has addressed both of these affirmative defenses. USBNA has claimed that the notice of default required to accelerate the mortgage loan and the RPAPL 1304 notice were properly sent to the mortgagors as attested to by its counsel and officer.
Paragraph eighteen of Cohen's affirmation stated that a notice of default was sent to the mortgagors. Cohen referred to paragraph eleven of Ward's affidavit and the default notice annexed as exhibit F as proof of USBNA's compliance with the default notice requirements for accelerating the note and mortgage obligation. The note and mortgage were annexed as exhibit B and the purported compliant notice of default was annexed as exhibit F.
Section 6 (C) of the note pertains to notice of default and states as follows:
"If I am in default the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that I owe on that amount. The date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means."
Section 22 of the mortgage states in pertinent part as follows:
"Lender may require Immediate Payment in Full ... only if all [specified] conditions are met,"
(a) I fail to keep any promise or agreement made in this Security Agreement...
(b) "Lender sends to me ... a notice ...that complies with Section 15 of this Security Agreement ... that states:
(1) The promise or agreement that was I failed to keep or the default that has occurred;
(2) The action I must take to correct the default;
(3) A date by which I must correct the default. That date will be at least 30 days from the date on which the notice is given.
(4) That if I do not correct the default by the date stated in the notice, Lender may require immediate payment in Full, and Lender or another Person may acquire the Property by means of Foreclosure and Sale;
(5) That if I meet the conditions stated in Section 19 of this Security Instrument, I will have the right to have Lender's enforcement of this Security Instrument stopped and to have the Note and this Security Instrument remain fully effective as if Immediate Payment in Full had never been required; and
(6) That I have the right in any lawsuit for Foreclosure and Sale to argue that I did keep my promises and agreements under the note and under this Security Instrument, and to present any defenses that I may have; and
(c) I do not correct the default stated in the notice from Lender by the date stated therein.
The pronouns "me" and "I" in the note and mortgage refer to the borrower.Section 6 (c) of the note and Section 22 (b) (3) of the mortgage both require that the borrower be given at date at least thirty days from the date the notice is given to cure the default. Section 22 of the mortgage, however, makes the giving of a default notice that complies with its content requirement a condition precedent to accelerating the mortgage.
The notice of default annexed as exhibit F is addressed to Estelle Miller (hereinafter Miller) and does not comply with the default notice requirements of either the note or the mortgage. In particular, while the notice does state that the default is due to Miller's failure to make monthly payments, it does not state a specific date that Miller must cure the default. Rather it states that the overdue payment must be paid within thirty days from the date of the letter. The letter is dated October 13, 2011. The default notice requires Miller to cure her default by make her arrears payment within 30 days of October 13, 2011, or sometime before November 13, 2011, November 12, 2011, being the thirtieth day.
In order to comply with Section 6 (c) of the note and Section 22 (b) (3) of the mortgage, Miller had to be given a specific date after November 13, 2011, to cure the default. Here no date was specified except for indicating a deadline date that was within, therefore, less than thirty days from October 13, 2011, the date that the notice was given.
The default notice utilized herein did not comply with the minimum requirement set forth in either the note or mortgage. Giving the requisite notice of default is a condition precedent to acceleration, which is a requirement for seeking the equitable remedy of foreclosure. (see Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982, 983, [2nd Dept 2014]).
USBNA failed to show that it complied with a condition precedent which required that it give the borrower a proper default notice prior to demanding payment of the loan in full. Accordingly, its motion for an order pursuant to CPLR 3212 granting summary judgment in its favor as against the mortgagors is denied without the need to consider the sufficiency of the mortgagor's papers in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). USBNA's Motion to Strike the Mortgagors' Answer
USBNA seeks an order striking the mortgagors' answer by claiming, among other things, that it is baseless, frivolous and a sham. The mortgagors' answer consists of numerous denials and twenty-five affirmative defenses. Motions to strike a pleading are generally associated with sanctions for disclosure violations pursuant to CPLR 3126.
USBNA's motion papers are ambiguous on whether its seeks dismissal of the mortgagors' affirmative defenses pursuant to CPLR 3211 (b); CPLR 3212 or some other basis. The difference is not without consequence.
The proponent of a summary judgment motion pursuant to CPLR 3212 must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact regarding the affirmative defenses (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
When moving to dismiss an affirmative defense pursuant to CPLR 3211 (b), the plaintiff bears the burden of demonstrating that the affirmative defense is "without merit as a matter of law" (see Vita v New York Waste Services, LLC, 34 AD3d 559 [2nd Dept 2006]). In reviewing such a motion this Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference (see Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721 [2nd Dept 2008]).
Rule 103 of the old (pre—1963) Rules of Civil Practice authorized a motion to strike a denial if it was found to be a sham. The CPLR has no such motion. The motion to strike a pleading as a sham no longer exists under the CPLR (see Whitmore v City of New York, 61 AD2d 795 [2nd Dept 1978] citing Chicago Dressed Beef Co. v Gold Medal Packing Corp., 22 AD2d 1010 [4th Dept 1964]). Pursuant to CPLR 3211 (b), a party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit. However, a CPLR 3211 (b) motion cannot be used to strike general denials as contrasted with specific defenses such as those contained in CPLR 3018[b] (City of Rochester v Chiarella, 65 NY2d 92 [1985]).
Therefore, the motion to strike that portion of the mortgagors' answer containing denials must be denied. With regard to striking of the twenty-five affirmative defenses, USBNA did not specify whether its is pursuant to CPLR 3211 (b), CPLR 3212 or some other procedural vehicle. The ambiguity prevents the Court from applying the correct standard of review against the mortgagors' affirmative defenses. With the exception of the first affirmative defense of lack of personal jurisdiction and the defenses premised on USBNA's lack of standing , this branch of USBNA's motion is denied without prejudice. The first affirmative defense is based on lack of personal jurisdiction. The mortgagors have waived this defense by failing to move for judgment on this ground within sixty days after serving their answer (see CPLR 3211[a][8], [e]; Wiebusch v Bethany Mem. Reform Church, 9 AD3d 315 [1st Dept 2004]).
The Second, Third, Fourth, Seventh, Eighth, Ninth and Tenth affirmative defenses are all premised on USBNA's lack of standing. However, the Court has already determined the issue in USBNA's favor at the accelerated trial.
USBNA's Motion for a Default Judgment and Order of Reference
RPAPL 1321 provides in pertinent part as follows:
If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.
When seeking an order of reference to determine the amount that is due on an encumbered property, a plaintiff must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant's default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL 1321; 1—2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures § 2.01 [4] [k] [note: online edition]).
On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing (U.S. Bank Nat. Ass'n v Poku,118 AD3d 980 [2nd Dept 2014] citing CPLR 3215[f]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2nd Dept 2014]).
As a preliminary matter the Court reviews plaintiff's compliance with the statutorily mandated pre-commencement notices prior to reviewing the requirements for an accelerated judgment or for the appointment of a referee.
RPAPL 1304 provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type" (RPAPL 1304 [1]; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]). RPAPL 1304 sets forth the requirements for the content of such notice (see RPAPL 1304 [1]), and further provides that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (RPAPL 1304 [2]; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]).
RPAPL 1304 currently applies to any home loan, as defined in RPAPL 1304 (5) (a). When the statute was first enacted, it applied only to high cost, subprime, and non-traditional home loans (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 104 [2nd Dept 2011] [citing L. 2008, ch. 472, § 2]). In 2009, the Legislature amended the statute, "effective January 14, 2010, to take its current form, by deleting all references to high-cost, subprime, and non-traditional home loans" (Aurora Loan Servs., LLC, 85 AD3d at 105 [citing L. 2009, ch. 507, § 1—a]).
"[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013] citing, Aurora Loan Servs., LLC, 85 AD3d at 106).
Cohen's affirmation and Ward's affidavit are the only documents within the motion containing sworn allegations of fact addressing service of the RPAPL 1304 notice. Through these sworn allegations of fact, USBNA admits that the notice requirements of RPAPL 1304 apply to the instant action and describes how it has attempted to comply with same. Paragraph nineteen of Cohen's affirmation states that the 90- day pre-foreclosure notice was sent to the defendants in full compliance with all the requirements of RPAPL 1304. He then refers to Ward's affidavit and annexed exhibit G in support of this claim. Cohen's affirmation, however, does not state the name of the defendant or defendants who were served, the date that the notice or notices were mailed, or the mailing address that the notice or notices were sent.
The court deems all references to "90-day notice" contained in USBNA's motion papers to refer to the pre-commencement notice required under RPAPL 1304 and has adopted the reference.
Ward's sole reference to RPAPL 1304 is in paragraph twelve of her affidavit. Therein she states that "by letters dated October 19, 2011", the defendants were forwarded the 90-day pre-foreclosure notices by regular and certified mail to the premise address. Curiously, Ward and Cohen both use the exact same phrase when referring to the mailing of the 90-day notice. They both use the phrase "by letters dated October 19, 2011" and neither one states that the letter was actually mailed on that date or on any other date. By this careful phrasing, Ward and Cohen's statements do not attest to the mailing of the 90-day notice on a specific date. Rather it calls the reader's attention to the date that is contained in the body of the letter and leaves the reader to guess or presume that the date in the body of the letter is the date of the mailing of the letter. Exhibit G is described as copy of the 90-day notice. That exhibit includes what appears to be a United States Post Office certified mail number. It does not include a United States Post Office certified mail receipt or date stamp.
Furthermore, Ward's affidavit does not refer to the mortgagors by name as the person or persons to whom the mailing was sent, instead stating that the notice was sent to the defendants. Ward does not state that she served the 90-day notice or identify the individual who did so. Nor does she refer to a standard office practice by USBNA to ensure that items are properly addressed and mailed (see Nocella v Fort Dearborn Life Ins. Co. of NY, 99 AD3d 877 [2nd Dept 2012]). The presumption of receipt by the addressee "may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2nd Dept 2001]). USBNA has, therefore, failed to submit an affidavit of service evincing that it properly served the mortgagor pursuant to RPAPL 1304 (Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]). Consequently, USBNA has not demonstrated strict compliance with RPAPL 1304.
In light of the foregoing, USBNA's motion for an order granting a default judgment against all non-answering defendants pursuant to CPLR 3215 and for an order of reference pursuant to RPAPL 1321 must be denied without prejudice.
CONCLUSION
The Court finds that USBNA was the holder of the note and mortgage on July 29, 2008, and had standing on April 25, 2012, to commence the instant mortgage foreclosure action.
That branch of USBNA's motion which seeks an order granting it summary judgment in its favor as against Estelle Miller and Lucia Salmond is denied without prejudice.
That branch of USBNA's motion which seeks an order striking the answer of Estelle Miller and Lucia Salmond is granted only as to the First, Second, Third, Fourth, Seventh, Eighth, Ninth and Tenth affirmative defenses and is denied as against the remaining affirmative defenses without prejudice.
That branch of USBNA's motion which seeks a default judgment against all other non-answering defendants is denied without prejudice.
That branch of USBNA's motion which seeks an order appointing a referee to compute pursuant to the RPAPL 1321 is denied without prejudice.
That branch of USBNA's motion which seeks an order amending the caption by striking the names of defendants John Doe, Richard Roe, Jane Doe, Cora Coe, Dick Moe and Ruby Poe and by substituting Shanti Stevens for defendant Jane Doe is granted.
The foregoing constitutes the decision and order of this Court.
ENTER
_____________________________
J.S.C.
That branch of USBNA's motion which seeks an order striking the answer of Estelle Miller and Lucia Salmond is granted only as to the First, Second, Third, Fourth, Seventh, Eighth, Ninth and Tenth affirmative defenses and is denied as against the remaining affirmative defenses without prejudice.
That branch of USBNA's motion which seeks a default judgment against all other non-answering defendants is denied without prejudice.
That branch of USBNA's motion which seeks an order appointing a referee to compute pursuant to the RPAPL 1321 is denied without prejudice.
That branch of USBNA's motion which seeks an order amending the caption by striking the names of defendants John Doe, Richard Roe, Jane Doe, Cora Coe, Dick Moe and Ruby Poe and by substituting Shanti Stevens for defendant Jane Doe is granted.
Attorney for Plaintiff
Jonathan M. Cohen, Esq.
Stein, Wiener & Roth, LLP
Suite 113
1 Old Country Road
Carle Place, NY 11514-9811
(516) 742-1212
Attorney for Defendant
Alice A. Nicholson, Esq.
26 Court Street, Suite 1307
Brooklyn, NY 11242
(800) 323-3034
Abigail Shvartsman
Law Secretary to the Hon. F. Rivera
360 Adams Street
Brooklyn, NY 11201
347-296-1524