Papers considered: 1. Notice of Motion dated September 18, 2024; Affirmation of Regularity of Hans H. Augustin, Esq., dated September 18, 2024; Affidavit of Dean Engle in Support, dated August 27, 2024, with Exhibits A-R; Statement of Material Facts; and Memorandum of Law in Support. 2. Notice of Cross-motion dated October 15, 2024; Affirmation of Jonathan E. Cohen, Esq., in Opposition and in Support of Cross-motion, dated October 15, 2024, with Exhibits A-D; Affirmation of Koz Karpe, in Opposition and in Support, dated October 11, 2024; and Response to Statement of Material Facts. 3. Affirmation in Reply to Opposition and Cross-motion and in Further Support of Edward Rugino, Esq., dated October 21, 2024. DECISION/ORDER In this action to foreclose on a residential mortgage, Plaintiff, IRBC, LLC, (“IRBC”), moves for summary judgment against Defendant, Koz Karpe, striking his Answer and affirmative defenses; dismissing Karpe’s counterclaims; granting a default judgment against non-appearing defendants; and appointing a referee to compute the amount due. Karpe opposes and cross-moves for leave to file and serve an amended answer. IRBC opposes the cross-motion. PARTIES’ CONTENTIONS IRBC brings this foreclosure action despite not having possession of the original Note. IRBC provides an Affidavit of Lost Note, dated February 10, 2016, from Kettia Guerrier of Ocwen Loan Servicing, LLC, (“Ocwen”), which avers that Ocwen became the servicer of the loan on January 10, 2016; it has made a good faith, diligent search for the Note and has concluded that it was never received from the previous servicer. Guerrier further avers that, “To the best of [her] knowledge, as of January 10, 2016, the original Note had not been satisfied, pledged, assigned or hypothecated”. IRBC contends it never received the Note from the previous servicer but it may nonetheless enforce the lost note pursuant to Uniform Commercial Code §3-804. UCC §3-804 allows a plaintiff to recover upon a lost instrument upon demonstrating “due proof of [IRBC's] ownership, the facts which prevent [IRBC's] production of the instrument and its terms”. Wells Fargo Bank v. Meisels, 177 AD3d 812, 814 (2d Dept., 2019). Annexed to the Lost Note Affidavit is a copy of a Note dated August 31, 2006, reflecting a loan in the sum of $48,600.00 from Mortgage Lenders Network USA, Inc., to Karpe, with a 15-year term. Karpe avers that on August 31, 2006, he took out two loans from Mortgage Lenders Network USA, Inc., one for $194,400.00 and the other for $48,600.00. From 2006 through October 2010, he received two monthly mortgage bills, one for each of the two loans. In 2010, he entered into a mortgage modification agreement with Wells Fargo Bank, N.A., d/b/a America’s Servicing Company which combined the two loans into one, with a new principal amount of $229,266.43. Thereafter, and for several years, he received one monthly mortgage bill from America’s Servicing Company. He has never received notice that there exists a second loan for which payments are overdue. The loan in question does not appear on his credit report. In 2014, Karpe was seriously injured in an automobile accident. Due to his resultant disability, Karpe fell behind on his mortgage payments. In or around October 2016, he entered into a second mortgage modification agreement with U.S. Bank, N.A., as Trustee. He avers that he is current on said mortgage modification agreement. Following the October 2016 mortgage modification agreement, Karpe continued to receive only one monthly mortgage bill. He never received any mortgage statements, invoices, bills, notices, or demands indicating that he owed anything other than his one monthly mortgage payment. No entity has ever sent a bill or demand for payment regarding the note and mortgage which is the subject of this foreclosure action since the first consolidation loan. Karpe avers further that he received no demands or notices from IRBC until it commenced a previous foreclosure action against him in 2019. Following the dismissal of the prior action, Karpe received no statements or demands from IRBC or from any entity acting on its behalf. Additionally, Karpe asserts that the motion for summary judgment is premature, as there are outstanding discovery demands to which IRBC has not responded. Karpe notes that the Complaint fails to identify IRBC other than to state it is a limited liability company, without identifying its state of incorporation and failing to allege that it is authorized to do business in New York State. Limited Liability Company Law §808(a) bars a foreign limited liability company from maintaining any action, suit, or special proceeding without a certificate of authority. A Mortgage Loan Sale Agreement (hereinafter “Sale Agreement”) identifies IRBC as a Delaware limited liability company doing business from an address in San Francisco, CA. Thus, Karpe questions whether IRBC brought this action in violation of LLCL §808(a). IRBC purportedly purchased the subject mortgage from VAK Capital, LLC. The Sale Agreement includes a Schedule “A”, identifying the mortgage loans being purchased. The Schedule “A” is heavily redacted, revealing only one entry which reads, “77 Katerskill Ave Catskill NY”, without names, dates, the account number, the principal amount, the identity of the original lender, or any other identifying features. Karpe argues that IRBC has failed to meet its initial burden of demonstrating entitlement to judgment as a matter of law. He notes that IRBC has failed to demonstrate, by admissible evidence, its ownership of the Note and its standing to bring this action. The Lost Note Affidavit asserts that the original Note was never transferred to Ocwen, the servicer, but that is contradicted by the affidavit of IRBC’s Manager, Dean Engle, who avers that “the original Note was lost while it was in possession of Ocwen” and the Affirmation of Regularity of IRBC’s counsel, which repeats that assertion. Furthermore, the Lost Note Affidavit fails to identify who conducted the search for the Note and fails to describe what steps were taken in the search. Karpe argues that if the Note was lost while in the possession of the prior servicer, that servicer is required to provide an affidavit attesting to the facts regarding loss of the Note. He asserts that the Lost Note Affidavit is thereby rendered inadmissible hearsay. Additionally, Karpe posits that Guerrier’s Lost Note Affidavit fails to lay a foundation for the admissibility of the documents annexed thereto, including the copy of the purported Note, rendering them inadmissible hearsay. Guerrier avers that the original Note was considered lost as of February 10, 2016, prior to the February 11, 2016, date of the purported assignment of the mortgage from MERS, Inc., as nominee for Mortgage Lenders Network USA, Inc., to US Bank, N.A., as Trustee. On that same date, US Bank, N.A., as Trustee, assigned the mortgage to IRBC. Karpe argues that, because the Note was lost prior to these purported mortgage assignments, they are a nullity. Furthermore, the assignments of the mortgage do not, on their face, include an assignment of the Note, as the operative language therein states, “the said assignor hereby grants and conveys unto the said assignee, the Assignor’s interest under the mortgage”, with no reference made to the Note. Both purported assignments are signed by the same individual on behalf of Orion Financial Group, Inc., whose interest and authority are not stated, and neither assignment establishes the authority of MERS, Inc. to transfer the Note. Engle states that the mortgage loan was sold to IRBC pursuant to the Sale Agreement dated November 23, 2015. The Sale Agreement identifies VAK Capital, LLC, as the owner of the mortgage loan. Nonetheless, Engle avers that, “as part of the mortgage loan sale, the Note and Mortgage were assigned to [IRBC] via a written Assignment of Mortgage dated February 11, 2016…” which was from US Bank, N.A., as Trustee. Furthermore, Karpe contends that IRBC has failed to properly demonstrate by evidence in admissible form that a default has occurred. The payment history submitted by IRBC includes a document entitled “Demand Loan Payoff” from FCI Lender Servicers, Inc., an entity never mentioned in Engle’s affidavit or in any of Plaintiff’s submissions. The Demand Loan Payoff is signed by “Centurion Administration Account”, rather than by a named individual. DISCUSSION/SUMMARY JUDGMENT STANDARD 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 demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Failure of the moving party to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposition papers. Id., Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). “When considering a motion for summary judgment, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations. Furthermore, summary judgment can only be granted when the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party’s meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action” (American Food & Vending Corp. v. Amazon.com, Inc., 214 AD3d 1153, 1154-1155 [3d Dept., 2023]; Davis v. Zeh, 200 AD3d 1275, 1278 [3d Dept., 2021]; Stanhope v. Burke, 220 A.D.3d 1122, 1123 [3d Dept., 2023]). A plaintiff in a mortgage foreclosure action satisfies its summary judgment burden by submitting a copy of the mortgage, the unpaid note and evidence of the defendant’s default. Green Planet Servicing, LLC v. Martin, 141 AD3d 892, 893 (3d Dept., 2016). Where standing is an issue, a plaintiff is required to demonstrate it is entitled to the relief sought in the complaint. JP Morgan Chase Bank, N.A. v. Venture, 148 AD3d 1269, 1270 (3d Dept., 2017). “A plaintiff’s standing is established in a mortgage foreclosure action ‘where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced’”. Id., see also, Everhome Mtge. Co. v. Pettit, 135 AD3d 1054, 1055 (3d Dept., 2016), quoting Chase Home Fin., LLC v. Miciotta, 101 AD3d 1307, 1307 (3d Dept., 2012). “‘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, and the mortgage passes with the debt as an inseparable incident’” JP Morgan Chase Bank, N.A. v. Venture, supra, 148 A.D.3d at 1270, quoting OneWest Bank, F.S.B. v. Mazzone, 130 AD3d 1399, 1400 (3d Dept., 2015). Here, the Court finds that IRBC has failed to meet its initial burden of demonstrating entitlement to judgment as a matter of law. The Lost Note Affidavit is conclusory, failing to indicate who conducted the search and failing to explain when or how the Note was lost. See, Bank of America v. Sebrow, 180 AD3d 982, 985 (2d Dept., 2020); US Bank Trust, N.A. v. Rose, 176 AD3d 1012, 1015 (2d Dept., 2019). Additionally, the submissions from IRBC are self-contradictory, in that the Lost Note Affidavit asserts that Ocwen never possessed the Note whereas the Engle affidavit states, “the original note was lost while it was in the possession of Ocwen” and counsel’s Affirmation of Regularity repeats the latter assertion. These contradictory assertions prevent a finding that IRBC was ever in possession of the Note. (cf. US Bank Trust, N.A. v. Rose, supra, 176 AD3d at 1015; Deutsche Bank Natl. Trust Co. v. Anderson, 161 AD3d 1043, 1044-1045 [2d Dept., 2018]). IRBC has also failed to demonstrate its ownership of the subject Note by written assignment. The Sale Agreement includes a Mortgage Loan Schedule, denoted as Schedule “A”, which purports to identify the assigned loan as “77 Katerskill Ave Catskill NY”. The Court finds Schedule “A” insufficient to identify the subject Note because it fails to specify the borrower’s name, the date of the Note, the account number, the principal amount, the original lender, or any other identifying information. Furthermore, the Court finds that IRBC has not met its initial burden of demonstrating a default, in that the “payment history” document is generated by an unidentified entity, FCI Lender Services, Inc., (“FCI”) for which no proper business records foundation was offered, rendering same inadmissible hearsay. Engle’s affidavit establishes a business records foundation for IRBC’s records, however FCI is a separate entity. He fails to identify FCI as being either a current or previous servicer of the loan and its relationship to this loan remains unexplained. The Court finds that IRBC has failed to demonstrate, by evidence in admissible form, its standing and Karpe’s default. Accordingly, IRBC’s motion for summary judgment is denied. DISCUSSION/MOTION TO DISMISS KARPE’S AFFIRMATIVE DEFENSES IRBC moves, pursuant to CPLR §3211(b), to dismiss each of Karpe’s twenty affirmative defenses. As the party seeking dismissal of Karpe’s affirmative defenses, IRBC bears “the heavy burden of demonstrating that the affirmative defenses are without merit as a matter of law, either because [Karpe has] failed to sufficiently state the defense or because the defense does not apply under the factual circumstances of the case”. Matter of Falck, __ AD3d __, N.Y. App. Div. LEXIS 6293, 2024 NY Slip Op 05924 (3d Dept., November 27, 2024). In reviewing a motion to dismiss an affirmative defense, a court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference. Id.; Umoh v. Doolity-Mills, 214 AD3d 1226, 1227 (3d Dept., 2023); see also, CPLR §3026. “Any doubt as to the availability of the defense or as to whether it should be dismissed should be resolved in favor of the [defendant]“. Matter of Falck, supra; see also, Lewis v. US Bank, N.A., 186 AD3d 694, 697 (2d Dept., 2020). Karpe’s First Affirmative Defense is that the complaint fails to state a cause of action. IRBC asserts that its complaint sets forth the existence of a valid Note, Mortgage and that Karpe defaulted, thus the Complaint states a valid cause of action. Inasmuch as IRBC has not established its standing or Karpe’s default on this motion, the Court denies IRBC’s motion to dismiss the First Affirmative Defense. Additionally, IRBC has failed to establish that it has authority to conduct business in the State of New York, and thus the authority to maintain this action. The complaint is silent as to such authority and the website of the Secretary of State provides no listing indicating that IRBC is registered and authorized to do business in New York. IRBC moves to dismiss Karpe’s Second, Third, and Eleventh Affirmative Defenses which raise issues of standing and capacity to sue. IRBC asserts that it was the holder or assignee of the original Note at the time the action was commenced. From its self-contradictory submissions herein, and because IRBC has failed to plead or demonstrate its authority to conduct business in New York State, IRBC’s standing has not been established sufficiently to dismiss Karpe’s standing-based affirmative defenses. Accordingly, the Court denies the motion to dismiss the Second, Third, and Eleventh Affirmative Defenses. The motion to dismiss Karpe’s Fourth Affirmative Defense, which claims the action is untimely in violation of the six-year statute of limitations, is granted. Karpe makes no argument in support of timeliness. The prior foreclosure action, commenced in 2019, accelerated the debt and began the running of the statute of limitations. This action was therefore timely commenced in 2023. IRBC’s motion seeks also to dismiss the Fifth, Sixth, Seventh and Ninth Affirmative Defenses, which assert equitable defenses of laches, estoppel, unclean hands, and waiver. These defenses address the failure of IRBC, or its predecessors in interest, to provide monthly billings, notices of default, statements of account to Karpe prior to filing its first foreclosure action or even thereafter. IRBC seeks to foreclose on a “zombie” second mortgage, which Karpe believes was consolidated into a larger mortgage and because the initial default in payment allegedly occurred in November of 2013, ten years prior to commencement of this action. Throughout those ten years, Karpe did not receive a monthly bill for this loan. Accordingly, Karpe claims that IRBC is acting unconscionably and/or in bad faith. Evidence of bad faith, fraud, or oppressive or unconscionable behavior by a mortgagee will operate to relieve a default. Consol. Mortg., LLC v. Westport Golf Inv’rs., LLC, 141 AD3d 923, 925 (3d Dept., 2016); Nassau Trust Co. v. Montrose Concrete Products Corp., 56 NY2d 175, 183 (1982); Fort William Henry Corp. v. Lake George Inn, Inc., 27 AD2d 884 (3d Dept., 1967). Waiver requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable. Nassau Trust Co. v. Montrose Concrete Products Corp., supra, 56 NY2d at 184. Accordingly, the Court denies the motion to dismiss the Sixth (estoppel) and Ninth (waiver) Affirmative Defenses. Nonetheless, the Court agrees with IRBC that laches is not a defense to a foreclosure action brought within the statute of limitations. See, First Fed. Savs. & Loan Ass’n of Rochester v. Capalongo, 152 AD2d 833 (3d Dept., 1989)(and cases cited therein); Onewest Bank, N.A. v. Melina, 2015 U.S. Dist. LEXIS 115887 (E.D.N.Y., 2015). Additionally, the equitable doctrine of unclean hands is not available as a defense in a foreclosure action. Id., US v. Bedford Assocs., 491 F.Supp. 851, 868 (S.D.N.Y., 1980), aff’d in part, rev’d in part on other grounds by, 657 F.2d 1300 (2d Cir., 1981); Jo Ann Homes at Bellmore, Inc. v. Dworetz, 25 NY2d 112, 122(1969). Consequently, the Court grants the motion to dismiss Karpe’s Fifth (laches) and Seventh (unclean hands) Affirmative Defenses. The Eighth Affirmative Defense alleges that IRBC has failed to join a necessary party or parties. IRBC asserts that it conducted a title search and has named every person or entity with an interest in the property subject and subordinate to the mortgage. IRBC also asserts that failure to name a necessary party is not a defense to a foreclosure, as absence of a necessary party leaves that party’s rights unaffected by the Judgment of Foreclosure and Sale. In opposition, Karpe has failed to identify any person or entity who needed to be joined herein. Consequently, the Court grants the motion to dismiss the Eighth Affirmative Defense. Karpe’s Tenth Affirmative Defense claims that IRBC and its predecessors failed to give due notice of default and acceleration. Based upon Karpe’s averments regarding not having received monthly bills or notices of default, the Court denies the motion to dismiss the Tenth Affirmative Defense. The Twelfth Affirmative Defense alleges failure to comply with RPAPL §§1303 and 1304. Here, IRBC argues that it complied with these statutory requirements and has provided proof of mailing. Movant’s Exhibit F is entitled “90-Day Notice with Actual Proof of Mailing”. The proof of mailing consists of photocopies of postage-paid envelopes and the notices contained therein. Proof of proper mailing gives rise to a presumption that the item was received by the addressee. Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 (2d Dept., 2001). “The presumption 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 [see, Tracy v. William Penn Life Ins. Co., 234 AD2d 745 (3d Dept., 1996); Pardo v. Central Coop. Ins. Co., 223 AD2d 832]“. Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 680 (2d Dep’t., 2001). In Residential Holding, supra, proof of actual mailing consisted of deposition testimony, a certificate of mailing, and a mailing ledger signed and date-stamped by a Postal service employee. In Tracy, supra, the Third Department held that proof of actual mailing must be “by certificate or affidavit of one with personal knowledge”. Tracy v. William Penn Life Ins. Co., supra, 234 AD2d at 748. Here, despite the photographs of notices and pre-paid envelopes, there is no affidavit or certificate of actual mailing from someone with personal knowledge. In the absence of such, Karpe’s denial of receipt is sufficient to raise a question of fact. Tracy v. William Penn Life Ins. Co., supra, 234 AD2d at 748. Accordingly, IRBC’s motion to dismiss the Twelfth Affirmative Defense is denied. The Thirteenth Affirmative Defense asserts that the Court lacks personal jurisdiction over Karpe. The affidavit of service indicates that Karpe was personally served at home in accordance with CPLR §308(1). Accordingly, the Court grants IRBC’s motion to dismiss the Thirteenth Affirmative Defense. The Fourteenth Affirmative Defense seeks tolling of excessive interest and fees due to lenders’ delays pursuant to CPLR §5001(a) and equity. The Court finds that Karpe’s averments are sufficient to sustain this affirmative defense. The Court denies the motion to dismiss the Fourteenth Affirmative Defense. The Fifteenth Affirmative Defense and Counterclaim asserts a violation of the Real Estate Settlement and Procedures Act (“RESPA”) (12 U.S.C. §2601 et seq. and Regulation X (24 C.F.R. Part 3500). Karpe asserts that the outstanding discovery requests make this part of IRBC’s motion premature. However, the law is clear that a violation of RESPA is not a defense to a mortgage foreclosure. 12 USC §2615. Furthermore, the counterclaim for the alleged violation of RESPA is time-barred pursuant to 12 USC §§2605, 2607. The Court grants the motion to dismiss the Fifteenth Affirmative Defense and Counterclaim. The Sixteenth Affirmative Defense asserts that the lenders violated provisions of the Truth in Lending Act requiring a mortgage servicer to send periodic statements to borrowers with information regarding the amount due, an explanation of the amount due, past payment activity, and delinquency information. 15 U.S.C. §1638(f); Regulation Z, 12 CFR 1026.41. Based upon Karpe’s allegations herein, the Court denies the motion to dismiss the Sixteenth Affirmative Defense. Likewise, the Seventeenth, Eighteenth, and Nineteenth Affirmative Defenses assert violations of The National Housing Act (12 U.S.C. §1710[a]; 24 CFR Part 203 [C]), New York Banking Law §§6-k, 6-l and 6-m, and NY Banking Law Article 12-D as well as Parts 418 and 419 of the NYS Banking Regulations. The Court denies IRBC’s motion to dismiss these Affirmative Defenses as premature. As to Karpe’s Twentieth Affirmative Defense and First Counterclaim based upon fraud, wherein Karpe asserts that in 2010 he was told that if he entered into the loan modification agreement it would consolidate his two mortgages into one. Karpe alleges that the lender, Mortgage Lenders Network USA, Inc., has been the subject of numerous enforcement proceedings related to its mortgage origination business, in response to which it agreed to pay millions of dollars in fines, restitution, penalties and settlements and had its authority to conduct mortgage business revoked. After October 2010, Karpe received and paid only one monthly mortgage bill. IRBC submits the 2016 mortgage modification agreement (Movant’s Ex. Q) to demonstrate that the 2010 mortgage consolidation loan did not modify or consolidate the loan which is the subject of this action. IRBC’s submission does not suffice to disprove the defense of fraud as a matter of law. The Court denies the motion to dismiss the Twentieth Affirmative Defense. DISCUSSION/MOTION TO DISMISS KARPE’S COUNTERCLAIMS Karpe has asserted three counterclaims, identified as “Fifteenth Affirmative Defense and Counterclaim”, “Twentieth Affirmative Defense and First Counterclaim” and “Second Counterclaim”. The Court has dismissed, above, the “Fifteenth Affirmative Defense and Counterclaim”. Karpe’s “Twentieth Affirmative Defense and First Counterclaim” alleges fraud and the “Second Counterclaim” alleges bad-faith litigation. The fraud counterclaim asserts that Mortgage Lenders Network USA, Inc., the originator of two mortgage loans to Karpe, has been the subject of numerous enforcement actions by various state and federal authorities. Karpe claims fraud in that he was led to believe he had consolidated the two loans into one. That belief was corroborated by the fact that he only received a single monthly mortgage bill for ten years thereafter. The bad-faith litigation counterclaim asserts that IRBC brought a previous foreclosure action which was dismissed for failure to comply with RPAPL §1304, which requires, as a condition precedent, a notice to borrower of her/his default 90 days prior to commencement. IRBC commenced this action, nearly identical to its previous action, forcing Karpe to again defend against a stale and meritless claim which lacks a foundation in law or fact. IRBC identifies its motion as being made pursuant to CPLR §3211(b), which applies to motions to dismiss a defense on the ground that a defense is not stated or has no merit and is thus inapplicable to a motion to dismiss a counterclaim. The Court construes the motion to dismiss the counterclaims as a motion pursuant to CPLR 3211(a)(7), seeking dismissal for failure to state a cause of action. The grounds for dismissal under CPLR §3211(a)(7) are strictly limited; the court is not permitted to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiff’s pleadings and affidavits (see Rovello v. Orofino Realty Co., 40 NY2d 633, 635, 357 NE2d 970, 389 NYS2d 314 [1976]; Sokol v. Leader, 74 AD3d 1180, 1181, 904 NYS2d 153 [2d Dept., 2010]). In this regard, the Third Department has explained: “In contrast to a motion for summary judgment, a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant-without regard to how compelling claims made in such submissions may appear (see Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351, 985 NE2d 128, 961 NYS2d 364 [2013]; see also Marston v. General Elec. Co., 121 AD3d 1457, 1458-1459, 995 NYS2d 646 [3d Dept., 2014]). Indeed, upon a motion pursuant to CPLR §3211(a)(7), the party opposing dismissal is allowed a remedy not available to the party seeking dismissal; the court ‘may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, since the ultimate criterion is whether the proponent of the pleading has a cause of action, not whether he or she has stated one’ (Schmidt & Schmidt, Inc. v. Town of Charlton, 68 AD3d 1314, 1315, 890 N.Y.S.2d 693 [3d Dept., 2009]; see Leon v. Martinez, 84 NY2d 83, 88, 638 NE2d 511, 614 NYS2d 972 [1994]; Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 372 NE2d 17, 401 NYS2d 182 [1977]; Chenango Contr., Inc. v. Hughes Assoc., 128 AD3d 1150, 1151, 8 NYS3d 724 [3d Dept., 2015])”. Carr v. Wegmans Food Mkts., Inc., 182 A.D.3d 667, 668-669, 122 N.Y.S.3d 391 (3d Dept., 2020); Bennett v. Bennett, 223 AD3d 1013, 1014, 203 N.Y.S.3d 754 (3d Dept., 2024). “[U]nless the motion to dismiss is converted by the court to a motion for summary judgment” (Rovello v. Orofino Realty Co., supra, 40 NY2d at 635), a motion to dismiss is not “in a posture to be resolved as a matter of law”. Miglino v. Bally Total Fitness of Greater N.Y., Inc., supra, 20 NY3d at. 351; Carr v. Wegmans Food Mkts., Inc., supra, 182 AD3d at 669. Nonetheless “where the movant provides evidence extrinsic to the complaint in support of the motion, a court ‘need not assume the truthfulness of the pleaded allegations. Instead, the criterion is whether the proponent of the pleading actually has a cause of action, not whether he has properly stated one’ (Henderson v. United Parcel Serv., 252 AD2d 865, 866, 675 N.Y.S.2d 715 [3d Dept 1998] [internal quotation marks, ellipsis, brackets and citations omitted]; see Matter of Parvaz v. Public Serv. Commn., 201 AD3d 1211, 1213-1214, 162 N.Y.S.3d 511 [3d Dept., 2022], lv dismissed & denied 38 N.Y.3d 1029, 169 N.Y.S.3d 247, 189 N.E.3d 354 [2022]). In such instance, the plaintiff no longer can rely only on the unsupported factual allegations of the pleading but must submit evidence demonstrating the existence of a cause of action’ (Matter of La Barbera v. Town of Woodstock, 29 AD3d 1054, 1055, 814 N.Y.S.2d 376 [3d Dept 2006], lv dismissed 7 N.Y.3d 844, 857 N.E.2d 68, 823 N.Y.S.2d 773 [2006]).” Whitehead v. Pine Haven Operating LLC, 222 A.D.3d 104, 109-110, 201 N.Y.S.3d 697 (3d Dept., 2023); Estate of Saltmarsh v. Hudson Valley Care Partners, LLC, 2024 N.Y. Misc. LEXIS 13828 (Sup. Ct., Ulster Co., 2024). Here, the parties have submitted affirmations and exhibits but the Court has not converted this aspect of IRBC’s motion to one for summary judgment. Accordingly, the standard is whether Karpe has a cause of action, not whether he has stated one and IRBC’s submissions must establish its defense “conclusively”. Id.; see also, Lawrence v. Miller, 11 NY3d 588, 595 (2008). As such, the Court finds that, based upon Karpe’s averments and the long period of time during which he received and paid only one monthly mortgage bill, Karpe has a cause of action for fraud based upon the alleged misrepresentations of the original lender. The Court also finds that Karpe has a cause of action under the “Second Counterclaim” for bad-faith litigation, based upon the aforesaid allegations, which may be further compounded if it is found that IRBC is unauthorized to conduct business in New York and thus has no right to maintain this action in any event. Accordingly, IRBC’s motion to dismiss these two counterclaims is denied. DISCUSSION/IRBC’S MOTION FOR DEFAULT JUDGMENT IRBC moves for a default judgment as against Defendants, MERS, Inc., US Bank, N.A., as Trustee, and Jazz (last name refused, s/h/a John Doe #1). CPLR §3215(g)(4)(i) provides that when a default judgment is sought against a corporation served through the Secretary of State pursuant to BCL §306, an “affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the defendant corporation at its last known address at least 20 days before the entry of judgment”. Defendant, MERS, Inc., was so served but IRBC’s submission does not include an affidavit of an additional service by mail to MERS, Inc. Accordingly, the Court denies the motion for a default judgment as to MERS, Inc. Similarly, no affidavit of an additional mailing, pursuant to CPLR §3215(g)(3)(i), has been submitted regarding Defendant Jazz. Accordingly, the Court denies the motion for a default judgment as to Jazz. As to Defendant, US Bank, N.A., as Trustee, it was served upon its authorized agent, thus no additional notice is required. US Bank has not appeared or answered and its time to do so has expired. Accordingly, the motion for a default judgment is granted as to US Bank, as Trustee. DISCUSSION/KARPE’S CROSS-MOTION FOR LEAVE TO AMEND HIS ANSWER In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. NYAHSA Servs., Inc., Self-Insurance Trust v. People Care, Inc., 156 AD3d 99, 102 (3d Dept., 2017). Here, IRBC does not claim prejudice or surprise and the Court perceives none. Accordingly, Karpe is authorized to file and serve his proposed amended answer, although without including those affirmative defenses and the counterclaim which have been dismissed by this Decision/Order. Also, the amended answer should utilize the amended caption directed herein. Finally, based upon the foregoing, the Court denies IRBC’s motion to appoint a referee to compute the amount due and grants its motion for leave to amend the caption to substitute the name of Jazz (last name refused) instead and in place of “John Does” numbered 1 through 12. Any other contentions of the parties have been considered and are deemed to be meritless or rendered academic. Therefore, it is hereby ORDERED, that IRBC’s motion for summary judgment and for the appointment of a referee to compute the amount due is denied; and it is further ORDERED, that IRBC’s motion to dismiss Karpe’s affirmative defenses is granted as to his Fourth, Fifth, Seventh, Eighth, Thirteenth, and Fifteenth Affirmative Defenses, and is denied as to all other affirmative defenses; and it is further ORDERED, that IRBC’s motion to dismiss Karpe’s counterclaims is granted as to the counterclaim denoted as Karpe’s “Fifteenth Affirmative Defense and Counterclaim”, and is denied as to the “Twentieth Affirmative Defense and First Counterclaim” and as to the “Second Counterclaim”; and it is further ORDERED, that IRBC’s motion for a default judgment is denied as to Defendants Jazz (last name refused) and MERS, Inc., and is granted as to US Bank, N.A., as Trustee; and it is further ORDERED, that the caption is hereby amended to read as follows: IRBC, LLC, Plaintiff v. KOZ KARPE a/k/a KOZ M. KARPE; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR MORTGAGE LENDERS NETWORK USA INCORPORATED; US BANK NATIONAL ASSOCIATION, AS TRUSTEE, FOR RESIDENTIAL ASSET SECURITIES CORPORATION, HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-EMX9; and JAZZ (Last Name Refused), Defendants; EF2023-943 and it is further ORDERED, that Karpe’s motion to file and serve an amended answer is granted, however, Karpe is directed to conform the proposed amended answer in accordance with this Decision/Order so as to remove those affirmative defenses and the counterclaim which have been dismissed herein, and to utilize the caption as amended herein; and it is further ORDERED, that the Court will conduct an in-person conference at the Greene County Courthouse on January 29, 2025, at 10:00 AM. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order, relieving the parties of their obligations, pursuant to CPLR §2220, regarding filing and entry thereof, but that does not relieve the parties of their obligations, if any, regarding service of same with notice of entry thereon. Dated: December 11, 2024
