Carver Fed. Sav. Bank v Redeemed Christian Church of God, Intl. Chapel, HHH Parish, Long Is., NY, Inc.

[*1] Carver Fed. Sav. Bank v Redeemed Christian Church of God, Intl. Chapel, HHH Parish, Long Is., NY, Inc. 2012 NY Slip Op 50921(U) Decided on May 22, 2012 Supreme Court, Suffolk County Whelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2012
Supreme Court, Suffolk County

Carver Federal Savings Bank, Plaintiff,

against

The Redeemed Christian Church of God, International Chapel, HHH Parish, Long Island, New York, Inc., New York State Department of Taxation and Finance, Cambridge Home Capital, LLC and John Does "1" - "10" and XYZ Corporation "1" - "10", said names being fictitious, parties intended being possible tenants or occupants of the premises being foreclosed herein and Michael Oluwafemi, as Guarantor, Defendants.



19753-11



Attys. For Plaintiff

1065 Avenue of the Americas

New York, NY 10018

OSHIKANLU & ASSOC. PLLC

Attys. For Defendants

211-07 Jamaica Ave.

Queens Village, NY 11428

Thomas F. Whelan, J.

In this mortgage foreclosure action, the plaintiff moves (#001) for an order: (1) awarding it summary judgment against the answering defendants; (2) deleting as party defendants certain named defendants; and (3) appointing a referee to compute amounts due under the subject mortgage. The motion is considered under CPLR 3215, 3212 and RPAPL § 1321 and is granted.

In June of 2011, the plaintiff commenced this action to foreclose a mortgage on real property situated in Amityville, New York given by the defendant The Redeemed Christian Church of God, International Chapel, HHH Parish, Long Island New York, Inc.(hereinafter "Church") to secure a mortgage note in the amount of $1,340,000.00, dated August 29, 2007. Additional security in the form of a written guaranty of the obligations of the defendant Church, in an amount equal to the value of a certain life insurance policy in a minimum amount of $500,000.00 on the life defendant Michael Oluwafemi, was executed by said defendant. By writing dated December 1, 2009, the note and mortgage were modified to provide a period of interest only payments upon a capitalization of certain delinquent payments. The plaintiff was the lender under the loan documents and alleges that it was the owner and holder of the note and mortgage at the time of the commencement of this action.

Claims for foreclosure and sale and recovery of amounts due from defendant Oluwafemi under the terms of his written guaranty of the Church's obligations under the loan documents are advanced in the two separate causes of action set forth in the plaintiff's complaint. The plaintiff charges that the defendants defaulted in making the monthly payment due on March 1, 2011. By letter dated April 28, 2011, the plaintiff advised that the loan was accelerated and that all amounts due thereunder were payable on or before May 3, 2011. When no such payment was made, the plaintiff followed with the commencement of this action on June 20, 2011.

The Church and its guarantor, defendant Oluwafemi, appeared herein by answer dated December 15, 2011. Therein, these answering defendants deny the material allegations set forth in the plaintiff's complaint and assert ten affirmative defenses and three counterclaims against the plaintiff. By such counterclaims, the answering defendants seek the recovery of money damages from the plaintiff by reason of its purported engagement in predatory lending practices and violations of the Banking Law and of General Business Law § 349. The defendants' affirmative [*2]defenses and counterclaims rest upon allegations that the plaintiff's refusal to accommodate the Church's 2009 request for a loan modification, by which the interest rate would be reduced and the plaintiff's preparation of the loan modification agreement of December 1, 2009 providing for a period of interest only payments. Defendants allege that such action on the part of the plaintiff constitutes such bad faith and unconscionable conduct that the plaintiff should be estopped from enforcing its rights to foreclose and adjudged liable to the defendants for money damages as demanded by the defendants on their counterclaims.

By the instant motion (#001), the plaintiff seeks summary judgment dismissing the affirmative defenses and counterclaims of the answering defendants and summary judgment on its complaint. The plaintiff further seeks an order dropping the unknown defendants as parties and the fixation of the defaults in answering by the remaining defendants. The plaintiff also seeks the issuance of an order of reference in the form of the one attached to the moving papers.

The Church and defendant Oluwafemi oppose the plaintiff's motion. In their opposing papers, the defendants admit that they defaulted in making the payments due on March 1, 2011and those following until July of 2011. However, in July of 2011, the Church defendants paid all past due installments of principal and interest believing that such payments would bring the loan status to "current" and place the Church in a better position to modify the loan (see ¶ 9;10 of Affidavit of Oluwafemi in Opposition). Continuing, the answering defendants allege that since July of 2011, they have paid all monthly installments. The answering defendants further allege that the "plaintiff induced the church to bring the mortgage current in July 2011 on the premise that they would reinstate the loan" (see ¶ 9 of Affirmation of Counsel in Opposition). Prior to their July 2011 payment of past due installments, defendant Oluwafemi was advised that the loan had been accelerated "and that we would have to pay the entire principal" (see ¶ 11 of Affidavit of Oluwafemi in Opposition). Oluwafemi further alleges that "when we spoke to our account officer later that day, she assured us that the issue would be resolved, that late fees would be waived and the foreclosure put on hold, since we were able to bring the loan current" (see ¶ 12 of Affidavit of Oluwafemi in Opposition). Upon these claims, the defendants urge the court to deny this motion by the plaintiff for accelerated judgment on its complaint.

It is well established that in an action to foreclose a mortgage, a prima facie case is made by the plaintiff's production of the note and mortgage and proof on the part of the defendant/mortgagor and any guarantors of a default in payment or other material terms set forth in the mortgage (see Garrison Special Opportunities Fund, L.P. v Arthur, 82 AD3d 1042, 918 NYS2d 894 [2d Dept 2011]; Swedbank, AB v Hale Ave. Borrower, LLC., 89 AD3d 922, 932 NYS2d 540 [2d Dept 2011]; Rossrock Fund II, L.P. v Osborne, 82 AD3d 737, 918 NYS2d 514 [2d Dept 2011]). Here, the plaintiff established its entitlement to summary judgment on its complaint by its production of the note and mortgage, the written guarantee of defendant Oluwafemi, the Modification Agreement dated December 1, 2009 and due evidence of defaults in payment beginning on March 1, 2011 on the part of the answering defendants.

It was thus incumbent upon the answering defendants to submit proof sufficient to raise a [*3]genuine question of fact rebutting the plaintiff's prima facie showing or in support of any affirmative defenses (see Grogg Assocs. v South Rd. Assocs., 74 AD3d 1021, 907 NYS2d 22 [2d Dept 2010]; Washington Mut. Bank v O'Connor, 63 AD3d 832, 880 NYS2d 696 [2d Dept 2009]). A defense not properly stated or one which has no merit is subject to dismissal pursuant to CPLR 3211(b). It thus may be the target of a motion for summary judgment by a plaintiff seeking dismissal of any affirmative defense after the joinder of issue. In order for a defendant to successfully oppose such a motion, the defendant must show his or her possession of a bona fide defense, i.e., one having a plausible ground or basis which is fairly arguable and of substantial character (see Feinstein v Levy, 121 AD2d 499, 503 NYS2d 821 [1st Dept 1986]).

Here, the opposing papers submitted by the answering defendants include the assertion of some of the affirmative defenses contained in their answer. The opposing papers are, however, principally premised on the newly asserted defense of payment and tender. For the reasons stated below, the court rejects these asserted defenses.

It is also well established that once a mortgagor defaults on loan payments, a mortgagee is not required to accept less than the full repayment as demanded (see EMC Mtge. Corp. v Stewart, 2 AD3d 772, 769 NYS2d 408 [2d Dept 2003]; First Federal Sav. Bank v Midura, 264 AD2d 407, 694 NYS2d 121 [2d Dept 1999]). It is equally well established that "when a mortgagor defaults on loan payments, even if only for a day, a mortgagee may accelerate the loan, require that the balance be tendered or commence foreclosure proceedings, and equity will not intervene" (Home Sav. of Am., FSB v Isaacson, 240 AD2d 633, 659 NYS2d 94 [2d Dept 1997]; New York Guardian Mortgagee Corp. v Olexa, 176 AD2d 399, 401, 574 NYS2d 107). Once a default has been declared and a loan's maturity has been accelerated, a mortgagee is not required to accept a tender of less than full repayment as demanded (see Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 180 NE 176 [1932]; Home Sav. of Am., FSB v Isaacson, 240 AD2d 633, supra). Moreover, the mere acceptance of a partial payment of the accelerated debt is not an affirmative act revoking the acceleration, where as here, provisions of the loan documents expressly disavow any waivers by acts or non-acts of the plaintiff and correspondence between it and the borrower expressly states that the borrower remains liable for the balance of the accelerated debt even after the partial payments are accepted (see UMLIC VP, LLC v Mellace, 19 AD3d 684, 799 NYS2d 61 [2d Dept 2005]; P.T. Bank Cent. of Asia v Ho Ho Ho Realty, 273 AD2d 212, 709 NYS2d 116 [2d Dept 2000]).

Here, the record contains undisputed proof of defaults on the part of the answering defendants in timely making the monthly installments of principal and interest beginning in March 1, 2011. The defendants' claims that these defaults were eradicated, waived or otherwise excused upon the plaintiff's acceptance of the defendants' payments of past due installments of principal and interest in July of 2011 are unavailing as the defendants admit that, prior to making such payments, they were advised that the loan had been accelerated. The existence of that outstanding liability as well as the non-payment of late fees that had already attached to the delinquent installment payments, the existence of which are admitted, render the defendants' defenses of payment and/or tender unmeritorious under the authorities cited above. [*4]

Likewise rejected are the defendants' claims that an enforceable oral loan modification or promise to modify the loan was made by the account officer assigned to the defendants' loan in July of 2011 who allegedly assured the defendants that "the issue would be resolved, that late fees would be waived and the foreclosure put on hold, since we were able to bring the loan current" (see ¶ 12 of Affidavit of Oluwafemi in Opposition). Where a contract, including a mortgage or guarantee, is unambiguous and contains a clause prohibiting amendment other than in writing within the contemplation of GOL § 15—301(1), alleged oral modifications of such contracts are ineffective to preclude enforcement thereof or other contractual remedies available to the plaintiff (see North Bright Capital, LLC v 705 Flatbush Realty, LLC, 66 AD3d 977, 889 NYS2d 596 [2d Dept 2009]; B. Reitman Blacktop, Inc. v Missirlian, 52 AD3d 752, 860 NYS2d 211 [2d Dept 2008]; Wasserman v Harriman, 234 AD2d 596, 651 NYS2d 620 [2d Dept 1996]; FGH Realty Credit Corp. v VRD Realty Corp., 231 AD2d 489, 647 NYS2d 229 [2d Dept 1996]; see also Martin v Liberty Mut. Ins. Co., 92 AD3d 729, 939 NYS2d 75 [2d Dept 2012]). Here, both the mortgage note and mortgage indenture contain a proscription against oral modifications of any of the terms of such documents.

Nevertheless, an oral modification of a written mortgage may be enforceable where the party seeking to uphold the modification partially performs under its terms, detrimentally relies on the modification and the partial performance, is unequivocally referable to the modification (see General Obligations Law § 5—703[4]; Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 689 NYS2d 674 [1999]; Chemical Bank v Sepler, 60 NY2d 289, 469 NYS2d 609 [1983]; Rose v Spa Realty Assocs., 42 NY2d 338, 343, 397 NYS2d 922 [1977]; Martini v Rogers, 6 AD3d 404, 774 NYS2d 378 [2d Dept 2004]). Under the doctrine of part performance, the acts of part performance must have been those of the party insisting on the contract, not those of the party insisting on the Statute of Frauds (see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, supra). Unsubstantiated, vague and conclusory allegations of the existence and terms of any such oral modification are, however, insufficient, as detailed factual allegations are required to establish a modification (see Money Store of New York, Inc. v Kuprianchik, 240 AD2d 398, 658 NYS2d 1019 [2d Dept.1997]; Wasserman v Harriman, 234 AD2d 596, supra; Can-Am Dev. Corp. v Meldor Dev. Corp., 214 AD2d 695, 625 NYS2d 600 [2d Dept 1995] [alleged oral extension of maturity date]; FGH Realty Credit Corp. v VRD Realty Corp. 231 AD2d 489, supra, [alleged oral modification of interest rate]; Bank of Smithtown v Boglino, 254 AD2d 319, 678 NYS2d 640 [2d Dept 1998] [alleged oral extension of payment dates]).

Here, the defendants offer only vague, conclusory and unsubstantiated allegations regarding the purported issuance of oral assurances that the loan and/or its default terms would be modified. Such allegations lack the requisite specificity required to overcome the requirement of a writing. Under these circumstances, the no oral-modification clause set forth in the mortgages coupled with the lack of a signed writing modifying the loan by reducing the interest rate or otherwise bars enforcement of the defendants' claimed oral modifications (see General Obligations Law § 15-301; North Bright Capital, LLC v 705 Flatbush Realty, LLC, 66 AD3d 977, supra; Can-Am Dev. Corp. v Meldor Dev. Corp., 214 AD2d 695, supra; City of New York [*5]v Grosfeld Realty Co.,173 AD2d 436, 570 NYS2d 61 [2d Dept 1991]).

The no oral modification statute of frauds set forth in GOL §15-301 is also subject to exceptions under principles of waiver or estoppel which may defeat claims to the statutory bar (see Rose v Spa Realty Assocs., 42 NY2d 338, supra; Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184, 451 NYS2d 663 [1982]). Under principles of New York jurisprudence, a waiver is a voluntary relinquishment of a known right, which would have been enforceable, but for the waiver (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 178, 451 NYS2d 663 [1982]). Nevertheless, a waiver should not be lightly presumed (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 525 NYS2d 793 [1988]; Fish King Enter. v Countrywide Ins. Co., 88 AD3d 639, 930 NYS2d 256 [2d Dept 2011]), and vague and unsubstantiated allegations of the conduct constituting the alleged waiver are not sufficient (see Manufacturers and Traders Trust Co. v David G., 242 AD2d 943, 665 NYS2d 949 [4th Dept 1997]).

Here, the defendants assert that the loan should be modified due to purported assurances to that effect made by the plaintiff or its agents. However, the defendants' bare and unsubstantiated assertions that the plaintiff made certain assurances thereby waiving indefinitely its right, pursuant to the terms of the mortgage, to foreclose on the property, contradicts the express terms of the mortgage and are insufficient to create an issue of fact which would warrant a trial (see City of New York v Grosfeld Realty Co.,173 AD2d 436, supra).

The defendants' claims of estoppel are equally unavailing. The elements of a cause of action based upon promissory estoppel are a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise" (Agress v Clarkstown Cent. School Dist., 69 AD3d 769, 771, 895 NYS2d 432 [2d Dept 2010]). The requirement that there be a clear and unambiguous promise is not met by references to a course of conduct between the parties (see Southern Fed. Sav. and Loan Assn. of Georgia v 21-26 East 105th St. Assoc., 145 BR 375, 383 [SD NY1991], aff'd, 978 F2d 706 [2d Cir 1992]). In addition, the conduct relied upon to establish estoppel must not be otherwise compatible with the agreement between the parties as written (see Rose v Spa Realty Assocs., 42 NY2d 338, supra). To establish a claim of equitable estoppel, three elements must be established: (1) conduct which amounts to a false representation or concealment of material facts; (2) intention that such conduct will be acted upon by the other party; and (3) knowledge of the real facts (see River Seafoods, Inc. v JPMorgan Chase Bank, 19 AD3d 120, 796 NYS2d 71 [1st Dept 2005]). As in the case of a waiver, unsubstantiated, vague and conclusory allegations of facts allegedly giving rise to a claimed estoppel are insufficient to establish the estoppel, especially in cases where in the statutory requirement of a writing exists (see Prudential Home Mtge. Co., Inc. v Cermele, 226 AD3d 357, 640 NYS2d 254 [2d Dept 1996]; Naugatuck Sav. Bank v Gross, 214 AD2d 549, 625 NY.2d 572 [2d Dept 1995]).

The opposing papers submitted by the defendants in opposition to the plaintiff's motion were insufficient to raise any questions of fact on the asserted defense of estoppel The [*6]defendants' claims that the plaintiff should be estopped from proceeding with this foreclosure action due to the conclusory and non-specific assurances of its account officer, who allegedly assured the defendants that by paying only the overdue and installments of principal and interest in July of 2011, the loan would be brought current and the foreclosure would be put on hold, are insufficient to establish the defense of estoppel. Moreover, the defendants have not shown that they were "misled" or that they "significantly and justifiable relied" on the alleged oral assurances (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 106, 817 NYS2d 606 [2006)]).

The remaining claims of the defendants rest upon notions of equity which purportedly allow the court to equalize the economic disparity between the parties by the imposition of judicially imposed adjustment of the terms of the contracts so as to achieve a result which the defendants characterize as fair and just. Distilled to their essence, these claims are aimed at insulating the defendants from the harsh remedy of foreclosure and sale that the plaintiff possesses under the loan documents. This resort to equity is allegedly justified by the character of parties and the hard economic times that continue to swirl around them.

The court, however, declines the defendants' invitation to invoke the court's equity powers so as excuse the defendants' defaults and preclude the plaintiff's enforcement of the loan documents as written. None of the equitable theories relied upon by the defendants, including, unclean hands, unconscionability, duress or bad faith on the part of the plaintiff encompass the remedy demanded. As this court recently held, there is no obligation on the part of a mortgage lender to renegotiate the terms of a mortgage loan, even in cases involving home loans that are secured by mortgages on family residences (see JP Morgan Chase Bank, Natl. Assn. v Ilardo, ___ Misc 3d ___, 940 NYS2d 829 [Sup. Ct. Suffolk County, 2012]). This is especially so after the borrower has already defaulted in making payments when due. As the Court of Appeals stated in Graf v Hope Bldg. Corp., 254 NY 1, 4—5, 171 NE 884 [1930]):

Plaintiffs may be ungenerous, but generosity is a voluntary attribute and cannot be enforced even by a chancellor. Forbearance is a quality which under the circumstances of this case is likewise free from coercion. Here there is no penalty, no forfeiture (Ferris v. Ferris, 28 Barb. 29; Noyes v. Anderson, 124 NY 175, 180, 26 N.E. 316, 317, 21 Am. St. Rep. 657), nothing except a covenant fair on its face to which both parties willingly consented. It is neither oppressive nor unconscionable (Valentine v. Van Wagner, 37 Barb. 60). In the absence of some act by the mortgagee which a court of equity would be justified in considering unconscionable he is entitled to the benefit of the covenant. The contract is definite and no reason appears for its reformation by the courts (Abrams v. Thompson, 251 NY 79, 86, 167 N. E. 178). We are not at liberty to revise while professing to construe (Sun Printing & Publishing Ass'n v. Remington Paper & Power Co., 235 NY 338, 346, 139 N. E. 470). Defendant's mishap, caused by a succession of its errors and negligent omissions, is not of the nature requiring relief from its default. Rejection of plaintiffs' legal right could rest only on compassion for defendant's negligence. Such a tender emotion must be exerted, if at all, by the parties rather than by the court. Our guide must be the precedents prevailing since courts of equity were established in this state. [*7]

The Appellate Division for the Second Department recently reminded us that the " stability of contract obligations must not be undermined by judicial sympathy'" (Emigrant Mtge. Co., Inc. v Fisher, 90 AD3d 823, 935 NYS2d 313 [2d Dept 2011]; see also First Natl. Stores, Inc. v Yellowstone Shopping Ctr., 21 NY2d 630, 290 NYS2d 721 [1968]). When parties set down their agreement in a clear and complete document, their writing should be enforced according to its terms (see WWW Assoc., Inc. v Giacontieri, 77 NY2d 157, 565 NYS2d 440 [1990]). The foregoing rules have special import in the context of real property transactions where commercial certainty is a paramount concern and the agreements was negotiated at arms length (see South Rd. Assoc., LLC v International Bus. Mach. Corp., 4 NY3d 272, 793 NYS2d 835 [2005]).

In Jo-Ann Homes v Dworetz, 25 NY2d 112, 302 NYS2d 799 (1969), the Court of Appeals rejected the unclean hands doctrine as a defense to a mortgage foreclosure action stating as follows:

Plaintiffs now contend that the doctrine of unclean hands' should prevent the defendants from proceeding with the foreclosure. Concededly, a foreclosure action is a proceeding in a court of equity which is regulated by statute.' (Dudley v. Congregation, Third Order of St. Francis, 138 NY 451, 457, 34 N.E. 281, 282; see, also, Amherst Factors, Inc. v. Kochenburger, 4 NY2d 203, 173 N.Y.S.2d 570, 149 N.E.2d 863). Nevertheless, it is well settled that such a proceeding is unlike other equity actions in several ways. Thus, while equity acts only in personam, an action for foreclosure is in the nature of a proceeding in rem to appropriate the land' (Reichert v. Stilwell, 172 NY 83, 89, 64 N.E. 790, 792). Just as this court sustained the legality of a mortgage where the note was illegal (Amberst Factors v. Kochenburger, supra), we now conclude that a mortgage may not be set aside solely because the underlying transaction was tainted by a fraudulent representation. The trial court, which was the court of equitable jurisdiction in this instance, chose not to sustain the defense of fraud in the foreclosure proceeding and neither common sense nor precedent warrants a contrary determination [emphasis added].

With respect to unconscionability as a defense, the Appellate Division, Third Department stated as follows in LaSalle Bank National Assn. v Kosarovich, 31 AD3d 904, 905, 820 NYS2d 144 (2006):

Assuming, without deciding, that the asserted unconscionability of the note and mortgage is an affirmative defense to the underlying default (see Pellicane v. Norstar Bank, 213 AD2d 610, 610—611, 624 N.Y.S.2d 214 [1995] ), defendant failed to demonstrate that "no reasonable and competent person would accept [their] terms, which are so inequitable as to shock the conscience" (Rodriguez v. Rodriguez, 11 AD3d 768, 769, 783 N.Y.S.2d 102 [2004]; see Lounsbury v. Lounsbury, 300 AD2d 812, 814, 752 N.Y.S.2d 103 [2002] ). Simply put, the unfortunate fact that defendant may have struck a bad bargain does not excuse his default [emphasis added]. [*8]

Claims of economic duress have also been rejected by appellate case authorities when raised as a defense to a mortgage foreclosure complaint. In Feinstein v Levy, reported at 121 AD2d 499, 503 NYS2d 821 (1986), the borrower, whose previous defaults in payment had been forgiven by the plaintiff mortgagee asserted, among other things, economic duress and fraud as defenses to the mortgagee's complaint in the foreclosure action it commenced after further defaults. In rejecting such defenses, the First Department found as follows:

In this case, the facts establish that the respondent had full knowledge of the mortgage and of all the material facts surrounding it. His actions, in regard to the obligation during the nine years that followed its execution are inconsistent with repudiation and constitute acquiescence and assent to it. The respondent is equitably estopped for impeaching it although it may have been void or voidable originally.

It is more than clear to this court that a determination not to modify a mortgage loan by a foreclosing bank that is under no legal obligation to modify such a loan is not unconscionable conduct and does not constitute bad faith, unclean unhands or economic duress. Even if it did, resort to the equitable powers of this court as a means to defeat viable claims for foreclosure and sale and to judicially impose a loan modification would, in the opinion of this court, be inappropriate. For it has long been understood that secure property rights are an important pillar in the foundation of a free society. The founding fathers took seriously their business of preserving liberty through the protection of property rights. They viewed such rights as undeniable rights of human beings critical to the maintenance of life, liberty and the pursuit of happiness and they recognized that property rights defined must be enforced if they are to be effective. As we are a nation of laws, not of men or women, the courts should ensure that property rights are well defined and well enforced. If so, the promise of free and ready transfers of real property or any interest therein will continue to be realized by the citizenry of this state. For these reasons, and those set forth above, the court finds that the defendants are not entitled to be relieved from the consequences of their defaults under the terms of the mortgage loan documents under any of the equitable principles advanced by them or others which might be concocted by the court.

The court further finds that the plaintiff sufficiently established its entitlement to a dismissal of all affirmative defenses asserted in the answer of the defendants due to their lack of merit and a prima facie entitlement to summary judgment on its complaint against the defendants (see Flagstar Bank v Bellafiore, ___ AD3d ___, 94 AD3d 1044 [2d Dept 2012]). The plaintiff's moving papers also established its entitlement to summary judgment dismissing the three counterclaims asserted in the answer of the defendants (see U.S. Bank Natl. Assn. v Pia, 73 AD3d 752, 901 NYS2d 104 [2d Dept 2010]; Mortgage Elec. Registration Sys., Inc. v McDuffie, 33 AD3d 893, 825 NYS2d 224 [2d Dept 2006]). The opposing papers of the defendants failed to raise any questions of fact requiring a trial, as there was no offer of proof with respect thereto (see Flagstar Bank v Bellafiore, ___ AD3d ___, 94 AD3d 1044, supra). Those portions of the instant motion wherein the plaintiff seeks summary judgment dismissing the affirmative defenses and counterclaims of the answering defendants and on its complaint against them is thus granted. [*9]

Those portions of the instant motion wherein the plaintiff seeks an order dropping, as party defendants, the unknown defendants listed in the caption and an amendment of the caption to reflect same is granted. All future proceedings shall be captioned accordingly.

The moving papers further established the default in answering on the part of the remaining defendants, none of whom served answers to the plaintiff's complaint. Accordingly, the defaults of all such defendants are hereby fixed and determined. Since the plaintiff has been awarded summary judgment against the answering defendants and has established a default in answering by the remaining defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see RPAPL § 1321; Bank of East Asia, Ltd. v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]; Vermont Fed. Bank v Chase, 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; Perla v Real Prop. Holdings, LLC, 23 Misc 3d 697, 874 NYS2d 873 [Sup Ct. Kings County 2009]).

The proposed order of reference attached to the moving papers, as modified by the court, has been signed and shall be forthwith served, together with a copy of this decision, upon all persons entitled to such service.

DATED: ____________________________________________________

THOMAS F. WHELAN, J.S.C.