The papers filed electronically via NYSCEF, numbered 72 through 126, were read on: (1) Plaintiffs motion for an order granting summary judgment against Defendant Expedit Michael Vogt, individually and as administrator and heir of the estate of Margaret A. Vogt (“Defendant”), granting a default judgment against certain non-answering defendants, and appointing a referee, and (2) Defendant’s cross motion for an order granting summary judgment dismissing the amended complaint insofar as asserted against him. DECISION & ORDER Upon reading the foregoing papers, it is ORDERED that the motions are disposed as follows. BACKGROUND In February 2006, Margaret Vogt and Defendant executed a note (“the first note”) in favor of America’s Wholesale Lender, promising to repay a loan in the sum of $450,000. The note was secured by a mortgage (“the first mortgage”) on real property located at 11 Beaver Dam Road, Pomona NY (“the property”), executed by Margaret Vogt and Defendant. In January 2007, Margaret Vogt executed a note (“the second note”) in favor of Countrywide Home Loans, Inc., in the amount of $44,872. The second note was secured by a mortgage (“the second mortgage”) on the property, executed by both Margaret Vogt and Defendant. Also in January 2007, Margaret Vogt executed a consolidated note (“the consolidated note”) in favor of Countrywide Home Loans, Inc., in the amount of $492,000, consolidating the first note and the second note. Meanwhile, a consolidation, extension, and modification agreement (“the CEMA”) was executed by both Margaret Vogt and Defendant, consolidating the first mortgage and the second mortgage. The CEMA provides, in relevant part, “I agree that I have no right of set-off or counterclaim, or any defense to the obligations of the Consolidated Note or the Consolidated Mortgage.” CEMA, Section v. at p 2 of 9, NYSCEF Doc #79. In September 2010, Margaret Vogt executed a Home Affordable Modification Agreement (“the HAMA”), which modified the consolidated note and CEMA effective October 1, 2010 and formed a new lien in the amount of $544,861.89. In the HAMA, Margaret Vogt agreed that “all terms and provisions of the [consolidated note and CEMA], except as expressly modified by [the HAMA], remain in full force and effect.” In September 2014, Margaret Vogt passed away. On February 15, 2019, Plaintiff commenced this foreclosure action, alleging that it is the owner and holder of the underlying note and mortgage and that Defendant defaulted in payment of the mortgage as of November 1, 2016. Affidavits of service were filed, alleging that service of the summons and complaint had been effectuated upon Defendant, and co-defendants Adejoke Victoria Vogt, as heir to the estate of Margaret A. Vogt (“Adejoke”), New York State Department of Taxation and Finance (“DTF”), and United States of America — Internal Revenue Service (“IRS”). In March 2019, Defendant answered, asserting 15 affirmative defenses, including, among other things, that Plaintiff failed to comply with RPAPL §1304 and that the action was time-barred. Defendant also interposed four counterclaims in his answer: (1) “fail[ure] to comply with the required Federal and NYS Disclosures concerning an interest-bearing loan; (2) violations of the Federal Truth-in-Lending Act (“TILA”), the Real Estate Settlement Procedures Act, and General Business Law §349; (3) violation of TILA Section 131(g) [15 U.S.C. §1641(g)], by selling and/or transferring the subject note and mortgage without proper notice to Defendant; and (4) Plaintiff is not the proper party to bring the action, as the transfer to the trust is void pursuant to New York trust law. On May 7, 2019, the attorney for IRS filed a notice of appearance and waiver, wherein the attorney waived service of all papers except, inter alia, amended complaints, referee’s report of computations, proposed judgment of foreclosure, notice of sale and referee’s report of sale; and stated that IRS would object to any judgment of foreclosure and sale which did not provide for a period of 120 days from the date of sale in which IRS might redeem the property. By Order dated November 21, 2019, Plaintiff was granted leave to, among other things, file a supplemental summons and amended complaint and serve by publication upon defendants Elise Vogt, as heir to the estate of Margaret A. Vogt; Christelle Vogt, as heir to the estate of Margaret A. Vogt; Sidonie Vogt-Amodu, as heir to the estate of Margaret A. Vogt; and Victor Vogt, as heir to the estate of Margaret A. Vogt. The November 21, 2019 order also appointed Denise Sullivan as guardian ad litem and military attorney on behalf of the aforementioned defendants (“GAL”). Thereafter, a supplemental summons, an amended complaint and affidavits of publication of the supplemental summons and amended complaint were filed. GAL Sullivan filed an Answer on behalf of said defendants and a report consenting to the issuance of an order of reference and the entry of judgment of foreclosure and sale. Plaintiff now moves for summary judgment on the amended complaint insofar as asserted against Defendant and for an order of reference. Plaintiff also moves, pursuant to CPLR 3215, for a default judgment against Adejoke, DTF and IRS. In support of its motion, Plaintiff submitted, among other things, an affidavit of Daniel Maynes, a Document Control Officer of Select Portfolio Servicing, Inc., which is the servicer and attorney-in-fact for Plaintiff. Maynes averred that he has access to the business records relating to the subject loan and is familiar with the relevant records and record-keeping practices; that, prior to the commencement of this action, the underlying note and mortgage had been transferred and assigned to Plaintiff; and that Defendant failed to comply with the terms of the consolidated note and CEMA, as modified by the HAMA, by failing to make the monthly payment due on November 1, 2016 and all subsequent payments thereafter. Plaintiff also submitted the relevant loan documents and loan payment records. Plaintiff argues that it has demonstrated its prima facie entitlement to judgment as a matter of law on the Amended Complaint insofar as asserted against Defendant. Plaintiff further argues that Defendant’s asserted affirmative defenses and counterclaims cannot be maintained because they have been validly waived under the express terms of the CEMA. Plaintiff argues that, in any event, the affirmative defenses and counterclaims are without merit. As for the branch of Plaintiff’s motion seeking a default judgment against Adejoke, DTF and IRS, Plaintiff submitted copies of the affidavits of service concerning those defendants, and alleges that IRS’s appearance in this action was untimely and that the time for Adejoke and DTF to answer or appear in this action has expired. Defendant opposes Plaintiff’s motion and cross-moves for summary judgment dismissing the amended complaint insofar as asserted against him on his affirmative defense that Plaintiff failed to comply with RPAPL §1304. Specifically, Defendant argues that Plaintiff failed to comply with the separate envelope requirement of RPAPL §1304, a condition precedent to the commencement of this action, and that this action was time-barred. In opposition to Defendant’s cross motion and in reply to Defendant’s opposition to Plaintiff’s motion, Plaintiff notes that Defendant has wholly failed to address Plaintiff’s argument that Defendant’s affirmative defenses and counterclaims have been validly waived under the express terms of the CEMA. DISCUSSION Under the circumstances presented herein, this Court finds that Plaintiff has established its prima facie entitlement to judgment as a matter of law by submitting the loan documents, Maynes’s affidavit and the loan payment records (see Bank of Am., N.A. v. Bloom, 202 AD3d 736, 737 [2022]; KeyBank N.A. v. Chapman Steamer Collective, LLC, 117 AD3d 991, 992 [2014]). Plaintiff has further established its prima facie entitlement to judgment as a matter of law dismissing Defendant’s affirmative defenses and counterclaims by submitting evidence that the affirmative defenses and counterclaims were validly waived by Defendant under the express terms of the CEMA, namely, Defendant’s agreement that he has no right of counterclaim or any defense to the obligations under the consolidated note or mortgage (see KeyBank N.A. v. Chapman Steamer Collective, LLC, 117 AD3d at 992; Baron Assoc., LLC v. Garcia Group Enters., Inc., 96 AD3d 793, 794 [2012]; Petra CRE CDO 2007-1, Ltd. v. 160 Jamaica Owners, LLC, 73 AD3d 883, 884 [2010]; Quest Commercial, LLC v. Rovner, 35 AD3d 576, 576 [2006]). In opposition, defendant failed to raise a triable issue of fact (see KeyBank N.A. v. Chapman Steamer Collective, LLC, 117 AD3d at 992). Inasmuch as Defendant’s cross motion is based solely on two of his affirmative defenses, which were waived, Defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law. Ignoring the issue of waiver raised by Plaintiff, Defendant argued his RPAPL §1304 defense, forthrightly, and argued his statute of limitations defense, obliquely, but did not address whether he waived those defenses by agreeing to the waiver contained in Section v. of the CEMA. The courts typically have interpreted such waivers broadly and have yet to address, insofar as this Court was able to locate, the issue whether affirmative defenses such as RPAPL §1304 and the statute of limitations, which are independent of the loan obligation itself and substantive challenges to the borrower’s indebtedness, are in fact covered by a waiver of “[any] right of set-off or counterclaim, or any defense to the obligations of the Consolidated Note or the Consolidated Mortgage.” CEMA, Section v. at p 2 of 9, NYSCEF Doc #79. A claim of fraud in procuring the loan has been recognized as exempt from such waivers. Archer Capital Fund, L.P. v. GEL, LLC, 95 AD3d 800, 802 [2nd Dept 2012] (“in the mortgage and loan documents, Eagle waived its right to assert defenses or counterclaims in response to any action commenced by Archer to enforce Eagle’s obligations thereunder and to recover the debt. Although the appellants’ counterclaim alleging fraud survives such a waiver (see North Fork Bank v. Computerized Quality Separation Corp., 62 AD3d 973, 974 [2nd Dept 2009])…”); MCC Funding LLC v. Diamond Point Enterprises, LLC, 36 Misc 3d 1206(A) *5- *7 [Sup Ct, Kings County 2012] (citing Archer Capital Fund, supra, and other cases to find that the defendant’s counterclaim alleging fraud survived the waiver contained in the loan documents). Defendant here does not assert fraud, which appears to be the only recognized exception to the kind of broad waiver of defenses and counterclaims such as that agreed to by Defendant in the CEMA. Nor has Defendant argued that his affirmative defenses of RPAPL §1304 and the statute of limitations are similarly exempt from the waiver. Accordingly, Defendant has not overcome the threshold obstacle to asserting his affirmative defenses, notwithstanding that he has turned a blind eye to the waiver issue. Indeed, having failed to address the issue of waiver which was squarely raised by Plaintiff in its moving papers, Defendant effectively conceded that his affirmative defenses are barred by the waiver. Consequently, there being no available defense to ward off summary judgment being granted to Plaintiff, the branch of Plaintiff’s motion for summary judgment against Defendant is granted. Defendant’s cross-motion for summary judgment is denied. With respect to the branch of Plaintiff’s motion seeking a default judgment against Adejoke, DTF and IRS, Plaintiff “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 N.A. v. Poku, 118 AD3d 980, 981 [2014]; see CPLR 3215 [f]; Bank of N.Y. v. DeJohn, 207 AD3d 510, 511 [2022]). This Court finds that Plaintiff has made the required showing (see Deutsche Bank Natl. Trust Co. v. Hall, 185 AD3d 1006, 1009 [2020]). Specifically, Plaintiff submitted evidence that it was entitled to foreclose the subject mortgage due to Defendant’s default in repaying the subject loan. The relevant affidavits of service submitted by Plaintiff reflect that Adejoke was personally served with the summons and complaint on March 23, 2019, and that an authorized agent of DTF was personally served with process on March 1, 2019. The record shows that Neither Adejoke nor DTF appeared or answered, and their time to file an answer has expired (see CPLR 3012). The affidavit of service concerning IRS reflects that the process server served the summons and complaint upon IRS by personally delivering a copy thereof to an authorized agent of IRS on March 4, 2019 and by mailing IRS another copy on March 7, 2019. IRS did not file an answer, and its time to do so has similarly expired (see CPLR 3012). Although IRS filed a notice of appearance, the notice of appearance, without more, does not protect IRS from entry of a default judgment (see Deutsche Bank Natl. Trust Co. v. Hall, 185 AD3d at 1009). Therefore, the branch of Plaintiff’s motion seeking a default judgment against Adejoke, DTF and IRS is granted. The parties’ remaining contentions, to the extent not expressly addressed herein, have been considered and deemed to be moot or lacking in merit. SUMMARY It is ORDERED that Plaintiff’s motion is GRANTED in its entirety, in accordance with the within decision; and it is further ORDERED that Defendant’s cross motion is DENIED in its entirety, in accordance with the within decision; and it is further ORDERED that Jason Eric Sona, Esq., with an address of 978 Route 45, Suite 204, Pomona, NY 10970-3512, telephone number: 347-454-5410, and email address: [email protected], is hereby appointed Referee to ascertain and compute the amount due to Plaintiff for principal and interest on the note and mortgage sued upon and set forth in the Amended Complaint, and to examine whether the mortgaged premises can be sold in one parcel, and it is further ORDERED that by accepting this appointment, the said Referee certifies that he or she is in compliance with Part 36 of the Rules of the Chief Judge, including, but not limited to, 22 NYCRR sections 36.2 (c) and 36.2 (d), and if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify this Court; and it is further ORDERED that within 10 days of accepting this appointment, the said Referee shall “link into” the NYSCEF file for this action; and it is further ORDERED that pursuant to CPLR 8003 (a), the fee of $350.00 shall be paid to the Referee for the computation of the amount due and upon the filing of his or her report, plus an additional fee of $750.00 upon sale of the property; provided, however, that if a scheduled sale is cancelled by any party to this action within 24 hours of such scheduled sale, the Referee will be entitled to a cancellation fee of $250.00. The Referee shall not request or accept additional compensation for the computation unless it has been fixed by the Court in accordance with CPLR 8003 (b); and it is further ORDERED that the Referee is prohibited from accepting or retaining any funds for himself or herself or paying funds to herself without compliance with Part 36 of the Rules of the Chief Judge; and it is further ORDERED that within thirty (30) days of the date of this Order, Plaintiff shall serve upon the Referee all documents necessary for the Referee to ascertain and compute the amounts due to Plaintiff; and it is further ORDERED that the Referee shall ascertain and compute the amounts due to Plaintiff within sixty (60) days of the date of this Order; and it is further ORDERED that Plaintiff shall make application for Judgment of Foreclosure and Sale within one hundred twenty (120) days of the date of this Order of Reference, unless extension is granted by the Court for good cause shown; and it is further ORDERED that within ten (10) days of the date of entry hereof, Plaintiff shall serve a copy of this Decision and Order, with notice of entry, upon all parties, each owner of the equity of redemption, the Referee appointed herein, the guardian ad litem and military attorney hereinbefore appointed, and any other party entitled to notice, and by such date shall upload to NYSCEF an affirmation of such service; and it is further ORDERED that this matter is scheduled for a conference on March 9, 2023 at 9:15 a.m. The purpose of this conference is to determine whether the Referee has completed the computation report and whether Plaintiff has filed an application for Judgment of Foreclosure and Sale. Appearances by the parties and appointed Referee are required unless; (1) the Referee has completed the computation report and (2) Plaintiff has filed an application for Judgment of Foreclosure and Sale. The foregoing constitutes the Decision and Order of this Court. Dated: November 3, 2022
