DECISION AND ORDER The papers filed electronically via NYSCEF and numbered as documents 70 through 107 were read on (1) Plaintiffs motion (a) for summary judgment pursuant to CPLR §3212, (b) to dismiss Defendant’s affirmative defenses pursuant to CPLR §3211, (c) for appointment of a Referee, (d) to amend the caption, and (e) for default judgment against the non-appearing and non-answering Defendants pursuant to CPLR §3215; and (2) Defendant’s cross-motion for (a) summary judgment pursuant to CPLR §3212(b), and (b) attorneys’ fees pursuant to RPL §282. Upon reading the foregoing papers, it is ORDERED that the motions are disposed as follows. BACKGROUND This is an action to foreclose a Home Equity Conversion Mortgage (“HECM”), or a “reverse mortgage” (the “Mortgage”), that secures a Home Equity Conversion Adjustable Rate Note (the “Note”) executed by John F. Fitton and Margaret M. Fitton (the “Borrowers”). On October 26, 2005 the Borrowers obtained the Mortgage from Financial Freedom Senior Funding Corporation, a subsidiary of IndyMac Bank, F.S.B. (“FFSFC”). The Mortgage constitutes a lien on the property located at 11 Spruce Lane, West Nyack, NY (the “Property”). John F. Fitton died on October 22, 2011, leaving Margaret M. Fitton as surviving tenant by the entirety. Upon Margaret M. Fitton’s death on December 3, 2017, title to the Property vested in her estate. Defendants Regina Hendrickson (“Hendrickson”) and Christopher Fitton (collectively “Defendants”) are the co-executors of the Estate of Margaret M. Fitton. On June 21, 2019, Plaintiff commenced this action by filing a Notice of Pendency and Summons and Complaint. Plaintiff re-filed the Notice of Pendency on June 13, 2022. On September 17, 2019, Derek Tarson, Esq. of the Legal Aid Society of Rockland County, Inc. filed a notice of limited appearance to represent Hendrickson in foreclosure settlement conferences only. On September 25, 2019, Hendrickson, appearing pro se, filed an answer with fourteen affirmative defenses, including but not limited to (1) lack of standing; (2) improper service; (3) failure to comply with RPAPL §§1304, 1306 notice requirements; (4) violation of GBL §349; and (5) attorney’s fees. Mandatory foreclosure settlement conferences were held on October 7, 2019, December 12, 2019, and January 28, 2020.1 The case was released from the foreclosure settlement part after the parties failed to reach a settlement at the January 28, 2020 conference. Plaintiff was then permitted to proceed with the foreclosure action. The action was stayed from March 18, 2020 through July 31, 2021, due to the residential foreclosure moratorium put in place by Congress’s passage of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) on March 27, 2020, and the U.S. Department of Housing and Urban Development’s extension of the moratorium on May 14, 2020. On March 9, 2021, Mr. Tarson filed a notice of appearance to represent Defendants in the action. The parties subsequently engaged in discovery. On October 13, 2022, Plaintiff filed the instant motion (1) for summary judgment against Hendrickson pursuant to CPLR §3212, (2) to dismiss Hendrickson’s affirmative defenses pursuant to CPLR §3211(b); (3) for an order of reference; (4) to amend the caption; (5) for default judgment against non-appearing and non-answering defendants pursuant to CPLR §3215; and (6) for such other and further relief as the Court deems just and proper. On October 31, 2022, Defendants filed a cross-motion (1) to dismiss the complaint pursuant to CPLR §3212; (2) attorneys’ fees pursuant to RPL §282; and (3) such other and further relief as the Court deems just, proper, and equitable. On December 16, 2022, Plaintiff submitted its opposition to the cross-motion.2 DISCUSSION CPLR §3212(b) provides that a motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” such that there are no triable issues of fact. CPLR §3212(b); Zuckerman v. City of New York, et al., 49 NY2d 557 [1980]; Roos v. King Construction, 179 AD3d 857, 859 [2nd Dept 2020]. The Court is required to view the evidence “in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party.” Santiago v. Joyce, 127 AD3d 954 [2nd Dept 2015] (citing Green v. Quincy Amusements, Inc., 108 AD3d 591, 592; Pearson v. Dix McBride, LLC, 63 AD3d 895). Plaintiff contends that it has established its prima facie entitlement to summary judgment by submitting the Note, the Mortgage, and evidence of the Borrowers’ default by the Affidavit of Marilyn Solivan, Contract Management Coordinator for PHH Mortgage Corporation (“Solivan Affidavit”), which states that there was a default under the terms of the Note and Mortgage upon Margaret M. Fitton’s death on December 3, 2017. Aurora Loan Services, LLC v. Taylor, 25 NY3d 355, 361-62 [2015]. Defendants argue that they have established their prima facie entitlement to summary judgment because Plaintiff has not proven that it has standing to prosecute the instant foreclosure action. Because the issue of standing is a threshold issue and Plaintiff’s alleged lack of standing was raised as an affirmative defense, the Court will address Defendant’s cross-motion for summary judgment first. Defendant’s Cross-Motion for Summary Judgment Defendants argue that they are entitled to judgment as a matter of law because Plaintiff lacks standing to prosecute this action. Defendants argue that the Note is a non-negotiable instrument, and that a reverse mortgage creates a security interest, therefore Article 9 of the UCC governs how Plaintiff must establish its right to foreclose the Mortgage. UCC §9-203(b) outlines the criteria for when a security interest is enforceable. Defendants posit that Plaintiff cannot satisfy the requirements of UCC §9-203(b), and therefore, it cannot enforce the Note. Plaintiff asserts that it has “established, prima facie, that it had standing to prosecute this action by demonstrating that it was in physical possession of the Note, which was annexed to the Complaint and CPLR §3012-b Certificate of Merit, at the time the action was commenced.” Plaintiffs Memorandum of Law, NYSCEF Doc. No. 73 (“Plaintiffs MOL”) p. 6 (citing HSBC Bank USA N.A. v. Olivier, 113 NYS3d 590 [2nd Dept 2020]). Plaintiff has submitted the Solivan Affidavit, which demonstrates that Plaintiff had retained possession of the Note and possessed it at the time the action was commenced, which is sufficient to establish standing in a typical mortgage foreclosure action. Flagstar Bank, FSB v. Hart, 184 AD3d 626, 627 [2nd Dept 2020]; NYSCEF Doc. No. 80. Id. 7. Plaintiff further argues that it is not required to give factual details related to the physical delivery of the Note because, under UCC §3-204(2), “an indorsement in blank specifies no particular indorsee and may consist of a mere signature [and] an instrument payable to order and indorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially indorsed.” Plaintiffs MOL p. 6.3 Despite Plaintiff arguing that it has standing because it has demonstrated its right to foreclose on a negotiable instrument, the parties agree that the reverse mortgage agreement at issue can be categorized as a “cash account”. Plaintiff’s MOL p. 7; Affirmation of Derek S. Tarson. NYSCEF Doc. No. 88 (“Tarson Affirmation”)
