The following e-filed documents, listed by NYSCEF document number (Motion 001) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents, the motion is determined as follows: In this action Plaintiff seeks to foreclose on a mortgage encumbering residential real property located at 106 Central Park South, Unit 4F, New York, New York. The mortgage, dated December 10, 2007, was given by Defendant Feride Omar (“Omar”) and non-party Zeki Omar to non-party Washington Mutual Bank, NA (“Washington”). The mortgage secures a loan with an original principal amount of $704,000.00 and is evidenced by a note the same date as the mortgage. Defendant Omar and the original lender’s assignees/servicers executed four loan modification agreements. Therein, Omar acknowledged the outstanding indebtedness and promised to pay the new principal balance and abide by the terms of the note. Plaintiff commenced this action alleging inter alia that Defendant Omar defaulted in repayment of the loan on or about November 1, 2022. Omar filed an answer and pled twenty-six affirmative defenses, including lack of standing, failure to comply with RPAPL §§1303, 1304 and 1306 as well as failure to serve a contractual pre-foreclosure notice. Now, Plaintiff moves for summary judgment against Omar, to strike the answer and affirmative defenses, a default judgment against the non-appearing Defendants, an order of reference and to amend the caption. Omar opposes the motion. In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to judgment as a matter of law though proof of the mortgage, the note, and evidence of Defendants’ default in repayment (see U.S. Bank, N.A. v. James, 180 AD3d 594 [1st Dept 2020]; Bank of NY v. Knowles, 151 AD3d 596 [1st Dept 2017]; Fortress Credit Corp. v. Hudson Yards, LLC, 78 AD3d 577 [1st Dept 2010]). Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v. Litkowski, 172 AD3d 780 [1st Dept 2019]). As to the Mortgagor’s default, it “is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form” (Deutsche Bank Natl. Trust Co. v. McGann, 183 AD3d 700, 702 [2d Dept 2020]). Also, based on the affirmative defenses pled, Plaintiff was required to demonstrate, prima facie, its standing (see eg Wells Fargo Bank, N.A. v. Tricario, 180 AD3d 848 [2nd Dept 2020]), its strict compliance with RPAPL §§1303, 1304 and 1306 (see U.S. Bank, NA v. Nathan, 173 AD3d 1112 [2d Dept 2019]; HSBC Bank USA, N.A. v. Bermudez, 175 AD3d 667, 669 [2d Dept 2019]) as well as its substantial compliance with the requisites under paragraph 22 of the mortgage (see eg Wells Fargo Bank, N.A. v. McKenzie, 186 AD3d 1582, 1584 [2d Dept 2020]). In support of a motion for summary judgment on a cause of action for foreclosure, a plaintiff may rely on evidence from persons with personal knowledge of the facts, documents in admissible form and/or persons with knowledge derived from produced admissible records (see eg U.S. Bank N.A. v. Moulton, 179 AD3d 734, 738 [2d Dept 2020]). No particular set of business records must be proffered, as long as the admissibility requirements of CPLR 4518[a] are fulfilled and the records evince the facts for which they are relied upon (see eg Citigroup v. Kopelowitz, 147 AD3d 1014, 1015 [2d Dept 2017]). Plaintiff’s motion was supported by an affidavit from Jason Clemens (“Clemens”), an Assistant Secretary of Fay Servicing, LLC (“Fay”), the alleged attorney-in-fact for Plaintiff. Clemens avers that his submission was based upon a review of Fay’s records and knowledge of its record keeping practices. Clemens’ affidavit laid a proper foundation for the admission of the records of Fay into evidence under CPLR §4518 by sufficiently showing that the records Fay relied upon “reflect[ed] a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business”, “that the record [was] made pursuant to established procedures for the routine, habitual, systematic making of such a record” and “that the record [was] made at or about the time of the event being recorded” (Bank of N.Y. Mellon v. Gordon, 171 AD3d 197, 204 [2d Dept 2019]; see also Bank of Am v. Brannon, 156 AD3d 1 [1st Dept 2017]). The records of other entities were also admissible since Clemens established that those records were received from the makers and incorporated into the records Fay kept and that it routinely relied upon such documents in its business (see eg U.S. Bank N.A. v. Kropp-Somoza, 191 AD3d 918 [2d Dept 2021]). Further, annexed to the motion were all the records referenced by Clemens (cf. Deutsche Bank Natl. Trust Co. v. Kirschenbaum, 187 AD3d 569 [1st Dept 2020]). Fay’s authority to act on Plaintiff’s behalf was established with submission of a limited power of attorney, dated December 26, 2019 (see U.S. Bank N.A. v. Tesoriero, 204 AD3d 1066 [2d Dept 2022]; Deutsche Bank Natl. Trust Co. v. Silverman, 178 AD3d 898 [2d Dept 2019]; US Bank N.A. v. Louis, 148 AD3d 758 [2d Dept 2017]). Clemens’s review of the attached records demonstrated the material facts underlying the claim for foreclosure, to wit the mortgage, note, and evidence of mortgagor’s default in repayment under the note (see eg ING Real Estate Fin. (USA) LLC v. Park Ave. Hotel Acquisition, LLC, 89 AD3d 506 [1st Dept 2011]; see also Bank of NY v. Knowles, supra; Fortress Credit Corp. v. Hudson Yards, LLC, supra). The loan modification agreements also evidenced the indebtedness (see Redrock Kings, LLC v. Kings Hotel, Inc., 109 AD3d 602 [2d Dept 2013]; EMC Mortg. Corp. v. Stewart, 2 AD3d 772 [2d Dept 2003]). Further, the submissions proved that all the statutory and contractual pre-foreclosure requisites were fulfilled (see generally United States Bank Trust, N.A. v. Mehl, 195 AD3d 1054 [2d Dept 2021]; Citimortgage, Inc. v. Ustick, 188 AD3d 793, 794 [2d Dept 2020]). As to standing in a foreclosure action, it is established in one of three ways: [1] direct privity between mortgagor and mortgagee, [2] physical possession of the note prior to commencement of the action that contains an indorsement in blank or bears a special indorsement payable to the order of the plaintiff either on its face or by allonge, and [3] assignment of the note to Plaintiff prior to commencement of the action (see eg Wells Fargo Bank, N.A. v. Tricario, 180 AD3d 848 [2d Dept 2020]; Wells Fargo Bank, NA v. Ostiguy, 127 AD3d 1375 [3d Dept 2015]). “The attachment of a properly endorsed note to the complaint may be sufficient to establish, prima facie, that the plaintiff is the holder of the note at the time of commencement” (Deutsche Bank Natl. Trust Co. v. Webster, 142 AD3d 636, 638 [2d Dept 2016]; cf. JPMorgan Chase Bank, N.A. v. Grennan, supra). In this case, Plaintiff annexed a copy of the note to the complaint endorsed in blank by the original lender, Washington, on its face. This is sufficient to demonstrate that Plaintiff was the holder of the note when the action was commenced (see Ocwen Loan Servicing LLC v. Siame, 185 AD3d 408 [1st Dept 2020]; Bank of NY v. Knowles, supra at 597). In opposition, Defendants’ claim that Plaintiff failed to demonstrate all the elements of a cause of action for foreclosure is without merit. The affidavit and proffered business documents were all in admissible form. The argument concerning physical delivery of the note is meritless. When a copy of the note, endorsed in blank, is attached to the complaint “[t]here is simply no requirement that an entity…must establish how it came into possession of that instrument” (see JPMorgan Chase Bank, NA v. Weinberger, 142 AD3d 643, 645 [2d Dept 2016]; see also Bank of Am., N.A. v. Pennicooke, 186 AD3d 545 [2d Dept 2020]). As to the branch of Plaintiff’s motion to dismiss all Defendants’ affirmative defenses, CPLR §3211[b] provides that “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit”. For example, affirmative defenses that are without factual foundation, conclusory or duplicative cannot stand (see Countrywide Home Loans Servicing, L.P. v. Vorobyov, 188 AD3d 803, 805 [2d Dept 2020]; Emigrant Bank v. Myers, 147 AD3d 1027, 1028 [2d Dept 2017]). When evaluating such a motion, a “defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed” (Federici v. Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008]). All the affirmative defenses are entirely conclusory and unsupported by any facts in the answer or by the papers submitted in opposition. As such, these affirmative defenses are nothing more than an unsubstantiated legal conclusion which is insufficiently pled as a matter of law (see Board of Mgrs. of Ruppert Yorkville Towers Condominium v. Hayden, 169 AD3d 569 [1st Dept 2019]; see also Bosco Credit v. Trust Series 2012-1 v. Johnson, 177 AD3d 561 [1st Dept 2020]; 170 W. Vil. Assoc. v. G & E Realty, Inc., 56 AD3d 372 [1st Dept 2008]; see also Becher v. Feller, 64 AD3d 672 [2d Dept 2009]; Cohen Fashion Opt., Inc. v. V & M Opt., Inc., 51 AD3d 619 [2d Dept 2008]). Further, to the extent that no specific legal argument was proffered in support of a particular affirmative defense, such defenses were abandoned (see U.S. Bank N.A. v. Gonzalez, 172 AD3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v. Bellafiore, 94 AD3d 1044 [2d Dept 2012]; Wells Fargo Bank Minnesota, N.A. v. Perez, 41 AD3d 590 [2d Dept 2007]). The branch of Plaintiff’s motion for a default judgment against the non-appearing parties is granted (see CPLR §3215; SRMOF II 2012-I Trust v. Tella, 139 AD3d 599, 600 [1st Dept 2016]). The branch of Plaintiff’s motion to amend the caption is granted (see generally CPLR §3025; JP Morgan Chase Bank, N.A. v. Laszio, 169 AD3d 885, 887 [2d Dept 2019]). Accordingly, it is ORDERED that Plaintiff’s motion for summary judgment against the appearing parties and for a default judgment against the non-appearing parties is granted; and it is further ORDERED that the affirmative defenses pled by all the appearing Defendants are dismissed; and it is further ORDERED that Clark Whitsett, Esq. 66-05 Woodhaven Blvd., Rego Park, New York 11374-718-850-0003 is hereby appointed Referee in accordance with RPAPL §1321 to compute the amount due to Plaintiff and to examine whether the property identified in the notice of pendency can be sold in parcels; and it is further ORDERED that in the discretion of the Referee, a hearing may be held, and testimony taken; and it is further ORDERED that by accepting this appointment the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to §36.2 (c) (“Disqualifications from appointment”), and §36.2 (d) (“Limitations on appointments based upon compensation”), and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further ORDERED that, pursuant to CPLR 8003(a), and in the discretion of the court, a fee of $350 shall be paid to the Referee for the computation of the amount due and upon the filing of his report and 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 paying funds to himself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further ORDERED that if the Referee holds a hearing, the Referee may seek additional compensation at the Referee’s usual and customary hourly rate; and it is further ORDERED that Plaintiff shall forward all necessary documents to the Referee and to Defendants who have appeared in this case within 30 days of the date of this order and shall promptly respond to every inquiry made by the referee (promptly means within two business days); and it is further ORDERED that if Defendant(s) have objections, they must submit them to the referee within 14 days of the mailing of plaintiff’s submissions; and include these objections to the Court if opposing the motion for a judgment of foreclosure and sale; and it is further ORDERED that failure to submit objections to the referee may be deemed a waiver of objections before the Court on an application for a judgment of foreclosure and sale; and it is further ORDERED that the branch of the motion to add “JOHN DOE” as a Defendant is denied as the New York County Clerk will not accept any judgment with a “Doe” Defendant in the caption; and it is further ORDERED that the “JOHN DOE” and “JANE DOE” defendants are stricken from the caption; and it is further ORDERED the caption is amended as follows: U.S. BANK TRUST NATIONAL ASSOCIATION, AND ANY SUCCESSOR IN INTEREST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS OWNER TRUSTEE FOR MILL CITY MORTGAGE LOAN TRUST 2019-GS2, Plaintiff v. FERIDE OMAR; BOARD OF MANAGERS OF TRUMP PARC CONDOMINIUM, Defendants. and it is further, ORDERED that Plaintiff must bring a motion for a judgment of foreclosure and sale within 45 days of receipt of the referee’s report; and it is further ORDERED that if Plaintiff fails to meet these deadlines, then the Court may sua sponte vacate this order and direct Plaintiff to move again for an order of reference and the Court may sua sponte toll interest depending on whether the delays are due to Plaintiff’s failure to move this litigation forward; and it further ORDERED that counsel for Plaintiff shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the General Clerk’s Office (60 Centre Street, Room 119), who are directed to mark the court’s records to reflect the parties being removed pursuant hereto; and it is further ORDERED that such service upon the County Clerk and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website at the address (www.nycourts.gov/supctmanh)]; and it is further ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all parties and persons entitled to notice, including the Referee appointed herein. All parties are to appear for a virtual conference via Microsoft Teams on October 31, 2024, at 11:00 a.m. If a motion for judgment of foreclosure and sale has been filed Plaintiff may contact the Part Clerk ([email protected]) in writing to request that the conference be cancelled. If a motion has not been made, then a conference is required to explore the reasons for the delay. Mortgage Servicer: Fay Servicing, LLC — Phone: 1-800-495-7166. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN X FIDUCIARY APPOINTMENT REFERENCE Dated: June 21, 2024
