The following e-filed papers read herein: NYSCEF Doc Nos. Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) 39-53, 55 Opposing Affidavits (Affirmations) 57-65 Upon the foregoing papers in this action to foreclose a mortgage on the commercial property at 18 Shepherd Avenue in Brooklyn (Block 3911, Lot 32), plaintiff U.S. Bank National Association, as Trustee for Velocity Commercial Capital Loan Trust 2018-1 (US Bank) moves (in motion sequence [mot. seq.] one) for an order, pursuant to CPLR 3212, granting it summary judgment for “the relief sought in its Complaint…”1 Background On November 7, 2018, US Bank commenced this commercial foreclosure action by filing a summons, an unverified complaint and a notice of pendency against the Property, The complaint alleges that the borrower, corporate defendant Prinsecita Esther Corp. (Prinsecita or Borrower), duly executed a $490,000.00 note in favor of US Bank’s unidentified “predecessor,” which was secured by a mortgage on the Property that was executed by Prinsecita’s President, Bernardo Rodriguez (Rodriguez) (complaint at
5-6). The complaint also alleges that Rodriguez executed a guarantee of the loan (id. at 21). The complaint alleges that Prinsecita “failed and neglected to comply with the terms and conditions of the debt instrument and mortgage…by failing and omitting to pay the items of principal, interest, taxes, assessments, water rents, insurance premiums, escrow and/or other charges, or by failing to perform a covenant contained in the aforesaid documents…” (id. at 9). Regarding US Bank’s standing to foreclose, the complaint annexes a copy of the February 1, 2018 note signed by Rodriguez on behalf of Prinsecita in favor of PHMS, LLC (PHMS) with an “Allonge To Promissory Note” on a separate page executed by Jeff Taylor of Velocity Commercial Capital, LLC (Velocity) in favor of US Bank. The complaint alleges that “the mortgage has been assigned to plaintiff by Assignment, included herein…” (id. at 8). The complaint further alleges: “That the plaintiff is now the sole, true and lawful owner and holder of the debt instrument…and the lien securing the same and all sums presently due thereunder. The note was physically delivered to, and is in plaintiff’s possession, according to the plaintiff’s records of delivery…” (id. at 15). The complaint asserts; three causes of action: (1) against Prinsecita to foreclose the Property; (2) against Rodriguez to collect on the guaranty; and (3) to correct a scrivener’s error in the mortgage regarding the legal description of the Property.2 On November 26, 2018, defendants Princesita and Rodriguez collectively filed an answer verified by defense counsel, which denied the material allegations in the complaint and asserted two affirmative defenses for unclean hands and contributory negligence. The answer also asserted a counterclaim for a judgment declaring that the note, mortgage, loan agreement and guaranty are “void” and directing the Kings County Clerk to expunge the mortgage as a lien on the Property (answer at
