US Bank Natl. Assoc. v Weinman

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US Bank Natl. Assoc. v Weinman 2013 NY Slip Op 30675(U) March 29, 2013 Supreme Court, Suffolk County Docket Number: 4754/2010 Judge: Thomas F. Whelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No 475410 SUPREME COlJRT - STATE OF NEW YORK I.A.S. PART 33 - SIJFFOLK COUNTY PRESENT: I ion. THOMAS F.WI-ELAN Sustice of the Supreme Court MO'l'ION DATE 2/04/3 1 ADJ. DATES 311 5/13 Mot. Seq. # 001- Ad.j. to 6/7/13 Mot. Seq. #002 - MotD HEARING SCHEDLKED FOR 6/7/13: X 1JS RANK NATIONAL ASSOCIATION, 11s TRUSTEE FOR CREDIT SUISSE FIRST I3OSTON CSFB ARMT 2006-1 Plaint iff HOGAN & LOVELLS, US LLP Attys for Plaintiff 875 Third Avenue New York, NY 10022 -against- ( ' A K O L I N I WALOSKI WEINMAN, and 101-1N DOE. (said the name being fictitious it being the intention of Plaintiff to designate any all occupants of premises being foreclosed herein, and a n y partics. corporations or entities, if any, having o r claiming an intercst or lien upon the mclrtgaged premises I. GOLD BENES, LLP Attys. For Defendant Weinman 1854 Bellmore Avenue Bellmore, NY 1 1710 I!puii thc f'ollowiiig paper's numbered I 10 22 read oil this motion for suinrnary iudqinent the deletion of. ~ > p o i n t m e nof a referee to compute and cross motion for summary iudgment, sanctions and dismissal t pursttiint to Cf'I>K .321 I (a)(7) and 3 126 ; Notice ofMotion!Order to Show Cause and supporting papers 1-3; 4-5 ; Noticc oi'C'imss Motion and suppoi-ting papers 6-8 ; Answering Afl?davits and supporting papers 9- I O : Reply ..: ( M r r 13- I4 (Memorandum of Law in support of motion) 15- I6 (Memoraritltim of Law in suppoi-& p i p w I I - I3 - iuotioii)..l 7- It; (Mc!iiorandu~n Law in support of motion); 19-20 (r\/leinoranduiii o f l,aw i n support of'ci-oss inotion): ot of ~ parties ;itid -2 1-22 (Mcn~orandum s t i ~ ) p ~of Cross Motion) ; iii rI , it IS ORDERED t h a t this motion (#OO 1 ) by the plaintiff' for suimnarj judgment against clefendant. \\ ,tlosl\i Weinman. the delet~on ol'the unknown defendants. the appointment of a referee to ~ompiitc ,inti otlicr incidental relief is considered under C P I X 3213. 3215 and RPAPI, $1 321 and is A 01 IIIC [* 2] 7 , 2013 for a hearing ofthe type contemplated b) CPLR 231 8 and/or CI IdII 7213(c).1-cgariling iervice of thc RPAPI, $1304 notice: and it is further djoLirnetl 1 01.riday Junc ORDERED that the cross motion (#002)by defendant, Caroline Walosla Weinman, for suminai judgincnt on a claim of breach of contract; an order imposing sanctions; dismissal of the complaint pursuant to CPLR 32 1 1(a)(7) and for failure to satisfy prerequisites to foreclosure and/or dismissal pursuant to CPLR 3 126 is considered under CPLR 32 12.22 NYCIiR Part 1 30- 1, CPLR 32 1 1 , ancl ? 126 and is denied, except with respect to the demand for dismissal due to the absence of proof of . m w c e of the KPAPI. $1304 notice. rhe plaintiff commenced this action on February 2,201 0 to foreclose a July 14,2005 inortgage that encumbers residential real property in Greenport, New York which was given by defendant Weinman to secure a mortgage note of the same date in the principal amount of $600,000.00. I n the coniplaint served and filed herein, the plaintiff seeks a judgment foreclosing its mortgage lien and a concomitant extinguishment of all subordinate interests in the mortgaged premises. Also demanded is a judicial sale of the mortgaged premises and a deficiency judgment against the obligor/mortgagor/ defendant Weinman subject to the existence of a deficiency after the sale and the institution of post-sale proceedings contemplated by RPAPL 5 1371. The complaint charges defendant Weinman with def aults I I I payment ol the monthly iiistallments due under the terms of the note and mortgage beginning on September 1 . 2009. Issue was purportedlyjoined by the service of a late, unsigned, undated and unverified answer \villi counterclairns by defendant Weinman on March 3,201 0, to which, the plaintiff responded by reply on March 16,20 1 0. An amended answer which was also undated, unsigned and unverified was servcd by defendant Weinman, without leave of court in or about May 12. 2010. Although this amended answer mas re.jected by the plaintiff due, arnong other things, to the absence of such leave, the plaintiff set responded by wrviiig a reply to the countei~claims forth therein. This amended answer i.; the target of those portions of the instant motion whizrein tlie plaintiff seeks summary judgment dismissing the affirmative defenses and counterclaims as jerted therein and lbr summary j udgrnent on its complaint )gainst clefenclaiit Weinman. In light of this procedural posture. all defects as to the form. service and t~melincc~ nl the answers served by the defendant are deemed waived by the plaintiff. The defendant s \wthdra\\ a1 ol the two additional affirmative defenses set forth in the amended answer is hereby .~cl~nowletigcd Accordingly. the defense that one or inore necessary parties have not been joined m d t l ~ the liui ol the mortgage is unenforceable due to a lack of due diligence in ascertaining M hether the t cl 2 f .e i i d ait c o u 1d J f fi) rd t h c 1o an LV hen i ad c are d i sini s s c d n 1 Iic pl;iintif~f nommoves for an o r d x awarding it tlie fbllo\n~ng reliefi ( 1 ) summary j ~ i t l g i i i ~ i i t o y i n s t t h i s aris~5 ing def endaiit together with dismissal of her aflirmative defenses and counterclaims: CI ( (iii oiilt i fikiiig the def aults in answering of the iion-ans\vering defendants; (3) deleting as party lc.tL.ndait\ [lie t i n k n o T i n persons listed i n the caption together with an anlendnient of such caption to l l t t~ w i i t > . ~ i c 1(-1.1 appointing a reicrei: to compute anlounts due undcr the cubjcct inortgagc. j 11 [* 3] L>eicndarit Weinman opposes the motion in cross moving papers wherein she demands the lollow111g ( 1c.licl~ 1 ) jiinimary ludgment on the claim that the plaintif f breached the terms of the note and/oi mortgagt.. (2) the imposition of sanctlons and/or costs against the plaintiff pursuant to 22 NYCKR l drt 130-1 : (: ) d i s m i w l of the complaint pur,uant to CPLR 321 l(a)(7) and by reason oi the plaintif1.s h i 1 lire to wti$fy prerequisites to foreclosure . and (4) dismissal of the complaint pursuant to CPIA 7 12h 1 he court first considers the defendant s cross motion since the successful prosecution thereof iiiight rei d e r tlic plaintiKs motion-in-chief academic A recital of material facts put before the court on the pending applications. however, is nxessary due to the unique circumstances of this action. In J u l y of 2005, defendant Weinman applied for a residential mortgage loan with Wall Street Mortgagc Brokers, Ltd., d/b/a Power Express [hereinafter Wall Street ] by submission of a written loan application. Therein, the defendant represented that she had a net worth in excess of $3,000.000.00 and that she was seeking a conventional mortgage loan in conjunction with her purchase ofa house built I I I 1822 on Main Street in Greenport, New York. Defendant Weininan further indicated that the purchase price of the house was $750,000.00 and that she needed a mortgage in the principal amount o1 $600.000.00. On July 14, 2005, Wall Street extended her a mortgage loan in that amount upoil her cvecution of an Adjustable Rate Note. ar Addendum to Note and an Interest Only Addendum to Adjustable Rate Promissory Note ( ~ Exhibit F attached to defense counsel s affirmation in support e of cross motion). Also executed on July 14, 2005 by defendant Weinman was a Mortgage, an Ad-justable Rate Rider. an Amendment to the Adjustable Rate Rider and an Interest Only Addendum t o Adjustable Rate Rider (.see Exhibit C attached to affidavit of plaintiffs Vice President in support of motion). LJnderthe terms ofthe loan documents, monthly payments for the first 10 years ofthe 30 year loan were denominated as interest only payments, although the defendant borrower could make voluntary principal payments with notice thereof to the lender during interest only period provided that the regular monthly payment of interest only was paid l hc amount of the monthly payment was identified i n tlic loan documents, including the note and its interest only addendum and the mortgage $3,792 41 The loan closed and defendant took title to the house that was the subject ofthe mortgage loan transxtion at issue in this action. 11-eniortgage note ofJuly 14. 2005 contains an indorsenient i n blank on the last page and 11 was under the terms of d Pooling and Servicing Agreement by delivery to a Lii\todial igent 01 the plaintiffo~~ about T cbruary I , 3006 I hc plaiiitiK as rrustee ol the Tiust or I L i i o n n <i\ ( icciit Suissc First Boston CSFFl ARM7 2006-1. clainis to be the holder of the note and o \ z v n c r oi 1 1 1 ~ ~ t p g e by kirtuc of the indorsement and deli\ er! of the note 111 February of 2006 I t in01 1 uithci c1;iiini to be the iwgnee o f tlic note , l i d mortgage by virtue of such physical deliveiy and the o \ ~ of the notc t i i d mortgagc undei the tmiii, of a written ,issignment dated, January 27. 201 0 iici 11;ins;fcricdt o the plaintiff [* 4] It also iiicluded a break down o r the 360 monthly installments due during the tliii-ty year tcrm of the loan l ayrnents ol principal and/or interest were listed i n thc amount of $3.792.41 togcther with $103.2-? liir taxes and $25 1 00 for insurance tor a total monthly payment of$4,236.72. 1 hls monthly installment payment of$3,792.41 was the same as that set forth in tlie note and mortgage. wherein it was noted that i t was subject to change. The Truth i n Lending Disclosure Statement also included notations that the $3.792.4 1 monthly installment figure for principal and/or interest would continue lor 120 inonths and that for the next 239 months, that amount would be reduced to $3,664.17 and that a h a 1 pa! nient of $3,645.46 would be due on August 1 2036. ~ In October of 2006, ASC, a division of Wells Fargo, the loan servicer, corresponded by letter with the defendant (,see Exhibit M attached to defense counsel s affirmation in support of cross motion). I herein, ASC advised that in an effort to ensure quality in the servicing of loans, certain loans h e r e chosen lor periodic review and that the defendant s loan had been so chosen (see Exhibit M attached I O defense counsel s affirmation in support of motion). That review reflected that during certain periods ciftinie incorrect interest rate and payments were utilized causing an overpayment in the amount 01 $9.39 . A X further advised that payment of such amount would follow within two weeks and that correction of monthly principal and interest payment was necessary as was an adjustment in the interest late. The letter broke down the new payment as follows: Interest Rate 6.50%; Index 0.0%; Principal Balance $593,254.17; Principal and interest payment $3.792.4 1; Total payment with escrow itenis $4.198.93. The interest rate and the principal and interest payment of $3,792.41 were the same as that listed in the mortgage loan documents including the Truth in Lending Disclosure Statement. Although this letter reflected that the principal balance of the loan had been reduced from the original loan principal of$600.000.00 to the amount of $593,254.17 in the 15 months that had then passed from origination, the record is devoid of any allegations or evidence that the defendant. who admittedly received such letter. inquired about or objected to this principal reduction. Defendant Weinman paid her monl hly mortgage payments without difficulty until 2008 when shc clperienced substantial losses in the 5to:k market due to imprudent investnients by her stock broker. In . l a n u a r ~ of2009>she attempted the first of live attempts to secure a loan modification from thc Loan Sen8icei. Wells Fargo. By August of2009. three of such applications had been denied by Wells Fargo rmd she M as just about out of cash reserves (see I[ 8 of the Affidavit of defendant Weinman in siipport o f cross motion) In September of 2000. defendant Weinman defaulted in making the monthly ~nstiilliiic~it under the terms ol the loa11documents. 7 his default in payment, which continues to tiuc ilatc. i j c~tlm~ttcd the anskvers scrved b\ defendant Wciiiman in l i i the month 1 1 101 to tlie default in pa)ment, namcl! August of2000. the defendant s lbcus 1 as gel! dcdicatetl to her worsening financial circutnstances l o r i t mas then that she claims to have lirst t l i ~ c t.1e.i that she had been overcharged I)\ the plaintiff u i t h respect to her monthlq note payiiieiits o~ 1 lm\is lor this cliccovery is not. however, advanced and t h ~ allegation is inconsistent with def enclant s s ,iclniissioi 01 i ~ ~ c e i ol the Octobei 12. 3006 letter li-or11 ASC (submitted as e~liiblt t o her moving pt M 17 1 1 ~ : ~ ; IL IC I I I he \ 1 ad\ iscd that I i e r p r i ~ i c i pbalal~cc l \.\as the11 $593,234.1 7,nccirl\i %7qOO0 Icss 00 1.11 [* 5] than the principal loan amount of $600.000.00. The defendant nevertheless claims that upon such he immediately dcmanded that the plaintiff provide her with a credit towards future interest payments and restore the principal balance to $600,000.00. The plaintit f allegedlyrefused (.we 1 13 01 the Weiniiian Affidavit in support of cross motion). I t was also in August of2009, when the defendant ciccided to evplore the possibility of obtaining a reverse mortgage to improve hcr financial circiinistanccs. She embarked on this pursuit purportedly with the help o r Wells Fargo agents. They allegedly advised her to remove her previously listed house from the market and to quit renting a carriage house on the premises. She further claims to have spent thousands of her cash reserves 011 repairs to the house. According to the defendant, these undertakings were required for approval o f the reverse mortgage (see 71 20 of the Weinman Affidavit in support of cross motion) By correspondence dated September 1, 2009, ASC, on behalf of the loan servicer, again wrote to the plriintifF regarding her loan. As mas the case in the October 1, 2006 letter from ASC. the defendant was advised that for quality purposes. certain loans were chosen for periodic review and her loan had been so chosen (see Exhibit C of Weinman affidavit in support of cross motion). That review rellected that during certain periods oftime incorrect interest rate and payments were utiliLed causing an overpayment. . Defendant Weinman was further advised that the amount of her monthly principal md/or interest payment of$3,792.41 set forth in the loan documents would be corrected downward to the sum of$3.100.48. The overpayment was described in the letter as $2,020.09 and it was credited to the unpaid principal balance. The letter reflected that the outstanding principal balance of the loan was $571,008.85. ASC further advised thal adjustments to principal and interest were being made and mould be effective on November 1,2009, but they were not a scheduled payment adjustment under the terms of the loan. The August 1. 20 15 payment adjustment or date of change set forth in the loan docunients reinained unai fected by the changes. Defendant Weininan characterizes this September 1 , 2009 letter from ASC as a response to hcr discovcry of overpayments in August o f 2009 and to her immediate contacts with Wells Fargo in 1% hich she purportedly directed it to apply all overpayments to future monthly installments of interest hen due Delendant Weininan allegedly reiterated those demands in response to ASC s Septeniber 1 .2009 lelter by demanding that the Plaintii fapply these overcharges towards f h r e interest payments u h l c h uould have provided me with financial relief for a significant time (scc 77 17-18 of the M cinman Afficlavit i n support of cross motion). According to the plaintiff, the overcharge totaled 4, ?870901 5. ;is that m o u n t represents the reduction in principal froni $600.000 00 to the $571,085.85 x l h r t h I I I the Yepteniher 1 . 2009 letter fi-orn A X . 1 lie rccord is. however. devoid of any proofIhat cltLfendantWcinman discovcrcd tlic overpayments i n August of 2009 and h a 1 the Septenihci 1 ?009 lcttci from ,ISC \\as J rcspoiise thcicto 7 he record is siniilcirl) devoid o f any proof that defendant U eiiinian ,it m~ time. ti-msinittecl to Wells f-argo OI- ASC c~n! deniitncis or ciiiectives Ibr rectoration 01 thc principal balance to its original amount ;ind that the 01 e r p q mcnts be applied to ftiture monthly ~nstnlliiici-ts izlicn duc rather to reductions of principal [* 6] ( h i October 18, 3009, the plaintiff issued separate notices of default as required bq the terms of (he iiiorlgagc ,ind bq RPAPI, tj 1304. l hc contractual notice advised the defendant of the default and the m o i i n t owiiig and offered the defendant a thirty day cure period, to wliich. the defendant did not .tvail heiself. I he defendant continued to pursue the reverse mortgage she lirst explored in August of 2009 and allegedly received commitment letters in Noveinber of2009 and in January of20 10 for that I everse mortgage in tlie net amount of$408,729.8 1. 1 Iowewr. in February of201 0. the defendant was idvised that HIJD regulations precluded issuance of a reverse mortgage to pay off all or part of a 1 distressed loan ( see 71 22 -29 of the Weinman Affidavit in support of cross motion). J he summons and complaint were filed on February 2, 2010 and served upon defendant Weinman pursuant to CPLR 308( 1). The affidavit of service includes a recital that the KPAPL 1303 notice on blue paper was served along with the summons which bears the language required by RPAPL, 41320. 2 conference of the type contemplated by CPLK 3404 was first held in April of 201 0 in the specialized mortgage foreclosure part of the court. The conferences continued through August of that 1ear when the case was released therefrom due to tlie parties inability to reach an agreement as to a loan modification or other settlement. Shortly thereafter, the defendant filed a petition i n bankruptcy. I he autoiiiatic stay was lifted in or about January of201 1 . The defendant has not advised the court of the nature of that proceeding or the court :; determination of the petition. I n July of 201 1, a demand for a preliminary conference was processed by clerical personnel and such ii conference was scheduled for August 2 , 2 0 1 1 . Although foreclosure actions are not subject to a differentiated case management track under applicable local rules, this court indulged the parties 111the conference process. The preliminary conference was finally marked held in January of 2012 and moved to the compliance conference calendar. That conference was marked finally held on June 12, 201 2. Alicr the substantial exchange of documents by the plaintiff in response to tlie defendant s discover) demands, including the plaintiff s two time production of the original Adjustable Rate Note a i d its Addendum to Note and Interest only Addendum t o Adjustable Rate Promissory Note, this m ot i o 11 ci I s u cd I11c first demand f or relief advanced in the defendant s cross moving papers is lier application lor summLir)judgment on tlie lTIIRD counterclaim set forth in lier amended answer i n which she states that jhe i oued soiiie $29.000.00 in overpayments of principal. I he defendant characterizes this coiinterc1;iiiii <isa claim that the plaintiff breached its obligations under the note and mortgage and owes 1 Iic ilef cnilanl that X29.000 00 i n overpaqiiic.nts charged Rclatcd claims for dismissal of thc plaintifl s complain1 p i i i ~ ~ ~ to CPLR 32 1 1 (a)(7) art advanced in the dei endant s tliirtl demand for relief- i n hei tmt iiotice 01 ( Ios? motion F o r the reasons stated belou. thc court finds that such dcinands arc w ~ t l i o u t Illc l 11 [* 7] insufticiencq under C PLR 32 1 1 (a)(7) premised upon allegations that overpayments ofprincipal were are iiiade b; the defendant fiom August 1, 2005 through October 1. 2009, during which time, only pa> mentc of interest were due and that the plaintiff should have applied the overpayments to future inonthly inctallment payments when due in August or September of 2009, in accordance with the ielkndant s demands. According to the defendant, that would have precluded a payment dehiilt from occiii-ring on September 1,2009, when the defendant failed to remit the monthly installment then due. fhe defcndant characterizes the plaintiff j decision to apply the overpayments to principal reduction rather than to future installments when due as wrongfill and a breach of the terms of the note and/or tnortgagc. I,ikewise characterized are 1 he Overcharges themselves and the plaintiff s i ailure t o ~mniediately corrcct them as purportedly demanded by the defendant. I l*i support of these contentions, the defendant argues that only voluntary overpayments of principal remitted by the defendant to the plaintiff on notice as contemplated by 7 5 of the note could properly have been applied to a reduction in principal. Continuing, the defendant claims that her u n k n o w n and iiivoluntary overpayments of principal during the first 40 months of the loan cannot be ansidered voluntary. Because the plaintiff was purportedly without any right to apply the over payments ofprincipal to the reduction ofthe principal amount ofthe loan, the decision to so apply them was wrongful and constituted a breach of the loan documents. In addition, the plaintiff is alleged to have fiirther breached the terms of the note and mortgage by continuing the overcharge payment schedule through November 1 , 2009 even 1 hough the plaintiff was aware ofthe overcharges in August nf2009. By virtue ofsuch breach, the defendant claims, in effect, to have been relieved ofher admitted defaults i n paying the monthly installments which began September 1,2009 and continue to date. Since the plaintiff is allegedly entitled to be relieved of these payment defaults, she claims that there was no actionable default on her part and that the plaintiff s conduct in accelerating the debt and commencing this action was wrongful. Having allegedly established the bona fides of her breach of contract claim a i d the legal insufficiency ofthe plaintiff-s clams due to the purported absence of any breach or default bv thc dcfendant under the terms of the loan documents. the defendant claims an entitlernent to a n iward o f cummary judgment on her claimed entitlement to the $29,000.00 allegedly owing to her and 11 of the complaint due to legal ii-~sufficic~icp pursuant to CPLR 322 1 (a)(7). I he challenges the position of the defendant on various grounds including that thc plaintiff clid not wrong_lull~ to reiinbiirsc or to apply thc okerpaynients to liiture ~nstallmentsol fail interest due vnce the cipplicat~on the overpayments of lsserts that the cylstence (i)f :lli> c]ai , i r i t h o i i m l ln 71 2 o f thc mortgage I n addition. the plainti c r p i >ment nnd the demand for its ietiu-n do not serve as viable defense? to a claim for foreclosure and ~ ~ I I Icn \ t i c i d tlic custence ot such o ~ e r p mcnts or to an) f;tiliire to propei ly credit pa>mentc rccciiwl a~ h; I n i o i t g ~ g e e om the mortgagor arc merely challenges to the miounts allegedly due and OM ing undei li thc note m d moltgage mhicli are determinal)le b j the referee o r the court at the tinit: ofthe c ~ i i i p i i ~ i t i ~ ) n 01 ~ I m o l l n o1\ 1ng llnder the loan documenls t~ 0 5 p1,iintillC [* 8] It I S axiomatic that when parties set down their agreement in a clear and complete document, their writing should be enforced according to its terms (5ec WWWAssoc., Itzc. v Cincontieri, 77NY2d 157. 365 NYS2d 440 I19901). A court may not, i n the guise of interpreting a contract, add or excise ierni~ distort the meaning of those uscd to make a new contract for the parties (see Teiclrniiirt v 01 Cutnt?zi~tiity Hosp. of W. Siqfilk, NY2d 514. 520, 640 NYS2d 472, 474 119961) A mortgagor is 87 thus bound by the terms of his contract, including those set forth I payinelit and acceleration clauses, n m d cannot be relieved from his default absent a waiver by the mortgagee, or estoppel, or bad fillth, li-aud. oppressive or unconscionable conduct on the latter's part (see Nassiiu Trust Co. v Montrose Concreto Prods. Cory, 56 NY2d 175, 183, 451 NYS2d 663. 667 [1982]: Ferlcrzzo v Riley, 278 N Y 389. 16 NE2d 286 [ l 9381). Llnlike the defendant's claims of breach on the part of the plaintiff and the purported absence of a default in payment, the court finds persuasive the plaintiffs claim that pursuant to 7 2 of the mortgage it properly applied overpayments, if any. to a reduction in principal. That provision authorizes the plaintiffto apply payments that it accepled from the defendant in the following order: first to interest due. nest to principal due: then to escrow funds due and any remaining amounts to late charges. other amounts due and tinally to the reduction clfpriiicipal. Since none of the items ahead of the last item '.principal reduction" were due, tlie plaintiff properly applied the amounts remaining after application interest due to principal reduction. The defendant points to no provision in the loan documents that override5 the priority of the application of overpayments to principal under 7 2 of the mortgage. The defendant's claim that she did not default because she was, or should have been, relieved ol' m y obligation to make the September I , 2009 monthly installment due to the plaintiffs retention of overcharges that had accuinulated and its failure to apply them to future installments when due appears to be contradicted by certain provisions set forth in 7 I of the mortgage. In the last line of that pmgraph. the defendant covenanted as follows: "No offset or claini which I might have now or in the liiture against the lender will relieve me from making payments due under the note and this Security Instrument or keeping all or any other promises and agreements secured by this Security Instrument". this Ilt~der pro\ ision, the defcndaiit acknowledged that errors in the amount of the monthly payment contained in the loan documents and/or tho je otherwise practiced and performed by the parties would not absolilc thc del'endant from her obligation to pay said inonthly installments. Errors in payment comprltations Ltlld i n thc applications 01' fuiids received by the lender were thus coiitemplalcd by the p,rrfies ,it Ilie time the loan originated and e qx-esslp cscluded as a ground for the non-payment of any ti~)coiiiinp t o n t l i l ~ installment by the defeiidant. 11 [* 9] o r shoulct hakc been known to the defendant i n October of 2006, since a reduction in principal of nearly 17.000 00 reported in the October 13, 2006 letter from ASC. L + ~ I ~ 1 urtlierniore, the court linds that errors. if any. i n the crediting of payments recelved lrom the ileibndant do not defeat the plaintiff s claim lor foreclosure aiid sale, but instead, go to the computation of amounts due which may be done by reference or by the court (.ret. IiPAPL $ 1321). 11 I S \vel1 cstablished that claims of wrongful overcharges, improper crediting ofamounts paid allegedly resulting i n wrongful acceleration aiid improperly declared defaults. such as those alleged here, have been held not to constitute a defcnse to foreclosure. hut instead, are matters which the defendant may put before the court or its referee by application to ofj set any overpayments (see First Nationwide Bank, FSB v Gootlmrin, 272 AD2d 433, 707 NYS2d 669 [2d Dept 20001; Long Is. Sav. Bank o Centereach, FSB f \ * Detikensohn, 222 AD2d 659, 635 NYS:!d 683 [2d Dept 19951; Crest/GoodMfg. Co. v Baumann. 160 AD2d 831, 554 NYS2d 264 [2d Dept 19901; Jolznson v Gaughan, 128 AD2d 756, 757, 513 NYS2d 244 [2d Dept 19871; Federal Natl. Mtge. Assn. v Connelly, 84 AD2d 805,444 NYS2d 147 [2d Dept 19811: ~ e Led \ o 1855 East Tremorit Corp. v Collado Holdings LLC, 102 AD3d 567, 2013 WL 257418 Ilst Dept 20131; Slzujelt v Bu/fnmmte, 92 AD3d 936, 940 NYS2d 108 [2d Dept 20121). I crsons appearing in a foreclosure action who contest the plaintiff s claims as to the amount owed have riglit to notice and the opportunity to be lieard by tlie court or the referee appointed for purposes of eumiining the long account to determine the correct amount ofthe mortgage debt due aiid owing to the plaintif f (\eeUsinoffvGrrtReallyCorp..6 N 36, 182NE238 [1932]; BlueberrjJIriv.Co. vIlnncr 1 0Y 1 Real07 Iiic.. 184 AD2d 906, 585 NYS2d 564 [3d Dept 19921). The defendant, here, shall thus be dl orded due notice ofthe proceedings, at which, the computation of amounts owing shall be made by this court o r a duly appointed referee ven 11 the plaintiff was obligated, contractually or otherwise, to return the overpayments to the dci cndan( or to apply them to future due installments of interest on and after September 1. 2009, the plaintiff s failure to do so would not have Iconstituted a material breach of the plaintiff s obligations such that i t wo~ild have relieved the defendant from perfbrming her payment obligations. A material breach IS one that is so substantial and fundamental that it defeats tlie object ofthe parties in making the transaction (\ee Syfiolev v Ccirole Hochmnn Desigii Croup, Inc., 79 AD3d 540, 91 3 NYS2d 79 I 1 <t Dept 20 101. qiiofii7g Crrllaizc~ir Keescville, Airsnble Clicisni & Lake Clicrrnplrirz R.R. Co.. 199 v NI 268. :84. 02 VI- 747 119101). A linding o f a material breach must be premised upon proofthat the i l t p i i tiire lrom the ternis oftlie contract or riofec/s 117 I ~ pei.for.n7cri7ce pervaded the whole ofthe contract A \ ( , a s tndefbat theobjectthat tlicpartiesintcndcd (,eeMillervRerijcinziii.l 4 2 N Y 613,617. 37NE6-31 1 1 8941~ H L ~ Y P ~ I I O ilSoutlte,vn Tier Stores, Itic., 9 AD2d 368. 189 NYS2d 323 [3d I k p t 19591). 1 Icrc. the i.ecord is ticvoid of any proof tliat crrors i n the monthly paynicnt amounts as tiscd in ihc I r ~ ilocr~nientsthat were rcmitted by the defendant and accepted by the plaintitf for the first Ihr+ n 111011tl1~ the loan and/or the applicatioii of overpay~ientsto a reduction in principal amounts 01 (:on:;ti t u t c x l ;I ileparture fi-nni tlie terms ol the contract or defects in its perlbrmance so as to pervadcd [* 10] t hc wholc o l the contract so as to defeat the object that the parties intended" (Miller v Benjrrmin. 142 'VY6 13. A 17. iupru: see ulro Mortgage Eke. Sys., Inc. v Manisctilco. 46 AD3d 1279,848 NYS2d 766 13d Ikpr 2 0 0 7 ) ) Instead, the record is replete with evidence that the objectives which the parties intended in the making of the loan transactions were accomplished 1 here I S no dispute that the mortgage loan advanced to the defendant accomplished her ob-jective of obtaining a mortgage loan in the ainoun t of $600,000,00 which enabled her purchase of the historic iesidence on )Main Street in Greenport, New York, at which she continues to reside to date The plaintift's predecessor-in-interest funded the mortgage loan in the principal amount of $600,000.00 in cuchange lor the profit available to it and il s successors and assigns over the term of the loan by virtue of the interest charged. The profit was thus the object for the lender and the terms requiring monthly installments of interest over the course of the loan were material as they served as the mechanism by which the lender would collect such profit The right to accelerate the debt in the event o f a default in payment or otherwise and the right to foreclose the lien of the mortgage were also material terms to the lender as they provided security and inoder;ited the risk of loss to which it was exposed to ininiediatelj upon advancement of the loan funds. LTnfortlmately, no monthly installinents of interest or principal have been paid by the defendant since September 1 , 2009 and all overcharges, even if they had been applied to future installments due, uould h'ive been exhausted in or about April of' 2010. So while the objectives of the defendant with respect to the mortgage loan transaction were accomplished by the extension of loan monies at origination. the plaintiffs objective in receiving a profit through the collection, over time, of interest on the principd loan amount, has been frustrated by the defendant's failure to make the monthly pqments of inlerest that she covenanted to (-loin both the note and mortgage. The defendant's admitted breach of her payment obligations is a material breach that entitled the plaintiffto resort to the remedies available to it under the loan documents, including loan acceleration and the right to foreclose. both of M hicli. tlie defcndant willingly conferred upon the plaintiff in exchange for the monies advanced. The plaintifl's resort to those remedies is thus not wrongful. but instead, entirely consistent with the ternis of' the loan documents and the rights therein afforded to the lender. The court thus finds that the cleiendant lhiled to demonstrate that there was a breach on the part of the plaintiff and that such breach \\:is material aiid willliil, or. if not willful. so substantial and fiindamental as to strongly defeat tlie olject 01' the 17;irties in making the loan transaction and relieved the defendant of her payment ol3ligationi ~ i i c iabsol\cd her from the matcrial breach of he loan documents that such non-1mynienl C('114fltUtCI I [* 11] tlic imic'fq of foreclosure is equitable in nature. it may be denied in cases of estoppel. bad faith, fraud o r opp-e>sive r unconscionable conduct ( \CL' I d , at 56 NY2d 183; Ferlrrzzo v Ri1q.J'. 278 NY 3x9. o ' "["'"). I !out\ er, fbreclosure action is in the nature o f a proceeding in rem to appropriate the land and iuch, 1 5 unlike most other equity actions which operate in personam (sce Jo Ann Homes vDworetz, _"5 NY2d 112, 302 NYS2d 799 r19691). This distinction is not without d difference as it compels a L astly more limited application of equital3le principles to foreclosure actions than to other actions equitablc 111 nature. A court's resort to equity to deny the remedy offoreclosure is thus limited t o cases wherein there is evidence of fraud, esploitive overreaching or unconscionable conduct on the part of the obligee to exploit an inadvertent, inconsequential, technical, non-prejudicial default by the Kurus mortgagor (seeNassau Trust Cu. v Muntrose Concrete Prods. Corp., 56 NY2d 175, 183, s z p ~ ; v Wasserman. 91 AD2d 8 12,458 NYS2d 280 [3d Dept 19821). Where the default is neither inadvertent nor unknowing, but instead, an act of volit ion that is substantial or material in nature in that it goes to the core of the mortgagee's willingness to extend the loan monies in exchange for the profit availablc ii-om the collections of payments of interest over time and/or any right of acceleration in an effort to recover the unpaid loan proceeds, resort to equity to relieve a mortgagor or other obligor is improper (\ee Fifi~'StatesMgt. Corp. v PioneerAuto Prrrks, 46NY2d 573,578.415 NYS2d 800 [1979]; Craf v Hupe Bldg. Corp.. 254 NY 1. 12-14. 171 N.E. 884 [1930]; Cyber Land, Inc. v Clzun Prop. Corp.. ;6 AD3d 748,830 NYS2d 198 [2d Dept 20071; Cuhn v Middle Rd. Riverhead Dev. Corp., 162 AD2d 578. 556 NYS2d 764 [2d Dept 19901). 'IS IIere. the defendant's September 1, 2009 default in payment of the monthly installment due under the terms of the loan documents was neither technical nor inconsequential, but instead. and ~iibstantial material as the receipt ofmonthly installments over tinie so as to make a profit was at the corc oftlie decision to lend and to purchase the loan at a later date. Nor was the default inadvertent. Rather, it was a volitional act on the part oftlie defendant arising fi-om conscious personal decisions purportedly dictated by her worsening financial circumstances and other considerations including discretionary detcriiiiiiations on how to spend her declining resources. In addition, a finding of any c\ploitivc overreaching or unconscionable conduct on the part of the plaintiff is interdicted by the h c t t h a t the defendant was given due notice of the default and time to cure, to which she did not avail 1ir.rsell~~ that she willingly conferred upon the plaintiff-s predecessor-in-interest the reniedies of' 'iiid Liccclerationand tbrcclosure. A resort to eclulty under these clrcunistances is thus unwarranted I ~ O I I S , and those set forth ,ibo\ e. the court f i n d s that the defendant ' c breach 01' cind/oi dcfense that there i f as no actionable default in payment on her part is \ i i t h o u l iliait i t lack5 'i factual bacis having cvidr.ntiaij suppoit 111 thc record and lacks a legal bacis rooted i i i controlling principles of' contract Ian 0 equit! 1 Those portions of the defendaiit'i cro5s motion I Jicrciii d i e scek5 dismissal of the p1aintiff"s complaint piiisuant to CPLR 32 1 1 (a)(7) aiidior CPLR \ I3 (11 c t Iiu\ clenicd and the T I IIRD coiiii tcrclaim set fi~l-tli111 the defendant's amended uis\\ei is iI i i t i , i i t il ~ i i i i [* 12] dismissed, mithout prejudice to an application to tlie referee or the court for a set off at the evaiiiination of. the long account t o determine the correct amount of the mortgage debt. The defendant next seeks the imposition of sanctions. costs and/or attorneys fees against the plaintitl pursuant to 22 NYCKK Part 130-1 by reason of its purported engagement in frivolous behavior rhis application is also denied. The plaintiffs conduct prior to the institution of this &on, including the allegations that its agents instructed the defendant to apply for a reverse mortgage I or purposes that violated HUD regulations, does not constitute frivolous conduct as that term is defined in 22 N ICRK $ 13O-l(c). The defendant s complaints about the conduct of the plaintiff during tlie course oi the CPLR 3408 conferences held in the specialized mortgage conference part ofthis court lack merit since there is no obligation on the part of the foreclosing plaintiff to modify a mortgage loan hefim 01 dfter a default (see Grnf v Hope 1Vdg. Corp.,254 NY 1,4-5, stpru; Wells Fargo Bank, N.A. 1 Vnn D-vke, 101 AD3d 638,958 NYS2d 331 [lst Dept 20121; Jf Morgan Chase Bank, Natl. Assn. vI/ardo.36 Misc3d 359,940 NYS2d 829 [Sup. Ct. Suffolk County 20121). Absent such an obligation, the plaintiff s declination to accept any of the various settlement proposals posited by the plaintiff in the wttlement does not constitute frivolo~is conduct as defined in 22 NYCRR 5 130-1(c) nor a violation of the duty to negotiate in good faith that is imposed by CPLR 3408 (see Wells Fargo Bank, N.A. v Vart Dyhe, 101 AD3d 638, supra). All ofthe defendant s claims of improprieties or bad faith conduct on the part of the plaintiff prior to suit and/or during the CPLR 3408 settlement conferences conducted hefore H quasi-j~idicial ofticer of this court, are re.jected as unmeritorious. I lie defendant s accusations that the plaintiff submitted false documentation and that the plaintiff s agents are robosigners who falsely charged the defendant with a default in payiiieiit aiid supplied an aftidavit ofmerit allegedly riddled with false assertions offact are predicated upon nothing more than surinise, speculation and innuendo. Notably, the defendant offers no evidence that the note attaclied to the plaintiffs moving papers is a fake or a forgeiy or that it has been fraudulently changed or altered in any manner. While the copy of the note submitted did not include the addendumc, the f-ailure to include them merely rendered the note incomplete. Admittedly, the plaintiff produced the original note m d both of its addendums fbr the defendant s inspection on two separate occasions including onc at which a defendant s rctained expert examined the note and its addendums. C O I I S ~ ~ C L I O L inissing from the defendant s moving papers is an affidavit by such expert regardingthe I~~J r\isteiicc of s o n i c alteration of the terms note and/or its addendurns or challenges to tlic genuineness 01 thc signatui es These circumstances. coupled with the defendant s inclusion of copies o f thc note c ~ ~its tci b o addendunis in her submissions t o the court, Lvarrant rejection of the defendant s claims that ~ l the p l a i n t i tfcngaged i n a nef ai-iousand fi.a~ic~uleiit scliemc to Inislead the court and to hide e\~idt iicc md <It.l.ccit IyLicr1iicf i 11s. 1 i n merit are the dcte idant s complaints about the plainliff s failure to produce oiclei iesolviiig pioceedings bet\vwn lion-parties to this action. the f i l l 1 text oftlie Pooling ~ ~ n d i I1 i~ing i \gi eenicnt and other documcntntil,n that is neithei I elevmt nor mnterial to the niatcrs at issue 1 q ~ i a l laching l~ I 1 oiisciit [* 13] in this li rcclosure proceeding. The court 1 hus finds no frivolous or bad faith conduct on the part ofthc nlaintii l with respect to these matters. f Inally. tlie defendant s complaints about the purported robosigning ofthe assignment ofthe in( 1 tgage that is attached to the plaintifi s moving papers is flatly rejected. The allegations underlying 1 1 hi S claim inercly parrot the categorical allegations of fraud in the content and the preparation of Joreclosurc papers that have been the subject ofnational news media reports over the past several years. Itather than be guided or influenced in any way by such media accounts or other chronicles of past misdeed,. this court i s obligated to adjudicate cases before it in accordance with the dictates of the cannons di judicial ethics. Those canons mandate that all adjudications be based solely upon the court s lair hearing and objective review ofthe c14iimsand proofs ofthe parties and the court s application of controlling law thereto. Courts are thus required to ignore and reject all other things, including hot topics that swirl around from time to time in other venues. Observance of these cannons ensures the avoidance of improper influences and intrusions into the impartial and independent adjudicatory process that is at the very core o f t h e judiciary s purpose and function. The defendant and her counsel would he well d v i s e d not go down this road again, for this court considers the putting ofthese media driven. categorical and irrelevant allegations of past misdeeds committed elsewhere upon litigants before this court to be frivolous under 22 NYCRR Part 130- 1 . r _ I he court has considered the defendant s remaining claims for the imposition of sanctions due to the plaintift~s purported engagement in frivolous and/or bad faith conduct and finds them all lacking i i i merit. Accordingly, those portions of the defendant s cross motion wherein she demands monetary smctions. costs and/or attorneys fees are denied. The next ground for dismissal of the plaintiff-s complaint set forth in the defendant s cross n~ovtng papers are challenges to the plaintiffs compliance with certain foreclosure prerequisites . First asscrted is the failurc ofthe plaintiff to attach a copy ofthe RPAPL 8 1304 notice of default to its moving papers However. appellate case ai ithorities have recently reminded us that, the defendant, as a t n o ing party necded to affirinatively demonstrate that this statutory pre-condition was not satisfied ~ since a party does not carry its burden in moving for suniniary judgment by pointing to gaps in its opponent proof. but must affirmatively del tionstrate the merit of its claim or defense (DeutsclreBmir/t lV(/t/.Trust CO.v Spcriios. 102 A113d 909. 20 13 WL, 36 I 084.0 [ 2d Dept 20 1 31; cf Aurora Loan Sewc.., LLC 1 M/c.isb/rrni.8 5 AD3d 95, 104. 923 NYS2d 609 r2d Tkpt 201 11). [* 14] C Y I3anh Vational Assn indeu V o -17542010 P:Ipe i 4 1 Weinman [lie n o t i x requirements of RPAPL $ 1304 (see RPAPL 1302). I n her reply papers, the defendant ,isserts ;I blanket denial ofreceipt ofthe RI API, 1304 notice. These claims are, however, insufficient 10 u arrant a dismissal ofthe complaint ( s e e Deutsclie Bnrik Nut/. Trust Cu. v Sprzrtus, 102 AD3d 9C)O. \i/,tn.~ Grogg vSuutlt Rd. ASSOL ., 74 AD3d 1021. 907 NYS2d 22 (2d Dept 201Oj). LP. hcvertheless, a p1aintiff.s failure to attach proof of service of the RPAPL $ 1304 notice in mordaiice with its provisions has been held to preclude the granting of its motion for summary c judgment ( ~ eDeutsche Bank Nntl. Trusi Cu. v Spnnus, I02 AD3d 909, sirprir;Aurora Lontt Sews., LLCv W.kisblum,85 AD3d95, 104.supro cf,Sulomorz vBirrden, 2013 WL 1136861 L2dDept20131; CKP Lonti, LLC v Taylor, 95 AD3d 1172, 945 NYS2d 336 [2d Dept 20121; Flagstcrr Bank v Rell~fiure, AD3d 1044,943 NYS2d 55 1 [2d Dept 201 21; Deutsclte Bank Nafl. Trust Co. v Posrter, 94 89 AD3d 674.933 NYS2d 52 [2d Dept 201 11; HSBCBank USA, N.A. VScltwartz, 88 AD3d 961,931 NYS2d 528 (2d Dept. 201 1); prima fNcic> entitlement to summary judgment made in a msidentiul for ec~osure ucfion hy plaint$f s proditction of the morigcige and unpaid note, fogelher wilh evidence of the niorlgcrgor r default). In an effort to bring this unduly protracted foreclosure action to a coiiclusicln. the issue of service of this statutory notice shall be the subject of a hearing of the type contemplated by CPLR 32 1 1(c) and/or 22 8. at which, the parties shall be heard on this limited issue m d the court will hear proofs of the parties including, customs and practices surrounding mailings. k j e c t e d as insufficient and unmeritorious is the defendant s denial ofreceipt the RPAPL I303 notice Such denial rests upon her failure to recollect a colored piece of paper in the bundle of lose pdpers served upon her (see 7 9 ofthe Weinman Affidavit in support of cross motion). This averment is amplified in her reply papers on the basis of the recent review of the initiatory papers served upon her over three years ago. These claims are, however, insufficient to rebut the process server s affidavit i n which he averred that the RPAPL fj 1303 notice on blue paper was served with the suininons and complaint (see USBankNatl.Assn. v Tate, 102 AD3d 859,958NYS2d722 [2d Dept 20131; Deutsclie Butih Nut/. Trust Cu. v Pietrarzico, 102 AD3d 724, 957 NYS2d 868 [2d Dept 20131; USNufl.Bank Assoc. Ateltoti. 90 AD3d 742, 934 NYS2d 352 [2011]; Deutsclte Bank Nntl. Trust Co. v Husstriti, 7X AD3d 380. 912 NYS2d 595 [2d Dept 213121:Mortgnge Elec. Sys. ~ S c h o t t e r50 AD3d 983, 857 , N YS2d SO2 ( 2 d Dept 20081). The defendant s claims and defenses regarding a lack compliance with ilic RJ ,lJ l, 2 I303 notice are dismissed as unmeritorious IJ I iI,c\vise dismissed are the defendan s complaints that tlie RPL4PI,4 1330 siiinnions iintice \%as iicIc c~~\~c court considers this challenge to be spurious a i I t rests, not upon a deviation from thc r lie \tcttutoi.J Iorm due to crrors or omissions i n the words eniployed by the scrivencr. but to tlie Liddition t i l ,mph,rsi\ b underlining The defendant :, claims and defcnscs resting upon purported defects in thc ! R I 21 1 1303 wmnions notice are thus dimissed. + [* 15] Culfolh C ounty 201 3 1). the failure to sat sfy a contractual condition precedent must be denied 111 an md L1lls~~cl il not. satisfaction ofthe condition i s admitted (see CPLR 301 5[a]: cf Sipcrture Barzk v Epstein. 0 5 4113d 1199, 945 hYS2d 347 12d Dept 20121). Here, p1aintilI.s compliance with the :ontractual notice of default was not denied in the defendant b answers and her challenges thereto were waived lay such pleading omission and her failure to advance the condition defects in a timely premswer motion to dismiss (see 3018[b]; 321 I[a][5J). In any event, the court finds no merit to the defendant s clainis that such notice served by the plaintiff upon the defendant was defectivc. All claims m d defenses predicated upon purported defects in the contractual notice of default are thus dismissed. . 1 hc defendant s claims for dismissal of the complaint that rest upon her pleaded defense that the plaintiff lacks standing to prosecute the action are rejected as unmeritorious. The standing of a plaintiff in a niortgage foreclosure action is measured by its ownership, holder status or possession of the note and mortgage at the time ofthe commencement ofthe action (see USBank ofNY vSilverberg, 86 iZD3d 274. 279, 926 NYS2d 532 [2d Dept 201 11; US Bank, N.A. v Adrian Collymore, 68 AD3d 752. 890 NYS2d 578 [2d Dept 20091; Wells Fargo Bank, N.A. v Mrrrchione, 67 AD3d 204. 887 NYS2d 6 15 12d Dept 2009l). Because a mortgage is merely security for a debt or other obligation and caniiot exist independently of the debt or obligation (Deutsche Bank Nut/. Trust Co. v Spanos. 102 AI>?d 909. s i p w . internal citations omitted]), a mortgage passes as an incident of the note upon its physical delivery to the plaintiff. Physical delivery of the note alone is sufficient to transfer the mortgage as incident to the note (see Deutsclie Bank Trust Co. Americas v Cudio, 94 AD3d 1040.943 YYS2d 545 [2d Dept20121; US Bunk Nntl. Assn. v Ccrizge. 96 AD3d 825,947 NYS2d 522 [2d Dept 201 31). Iloldcr status is established where the plaintiff is the special indorsee of the note or takes possession oi a mortgage note that contains an indorsement in blank on the face thereofor by allonge J\ tlie mortgage follows as incident thereto ( ~ e UCC tj 3-202: $ 3-204; $ 9-203[g]; Deutschr Bcrnk e Trust Co.Anierictrs v Cudio, 94 AD3d 1040. $upmi: Mortgage Elec. Registration Sys., Inc. v Cotrkley, 41 AII3d 674. 838 NYS2d 622 [2d Dept 20071;Deutsclie Bank Nutl. Trust Co. v Pietranico, 33 Misc3d 528. 928 NYS2d 81 8 [Sup. Ct. Suf folk County 201 1 1. off . , 102 AD3d 724.957 NYS2d 868 [ 2d I k p t 201 3 Sipru). Delivery of an indorsed note to an agent of the plaintii f coiistitutes delivery to the plairitilll as principal (sec Policy Funding Coup. v Kings County LGfuyefte Trust Co.. 33 NY2d 776.;50 NYS2cl 414 [ 1979J: \e( LIISO Toiielli v Clime Mciirlrtlttnri Bunk, N.A.. 41 NY2d 674. 394 Y 2 d 8 18 1 1077)) 4 [* 16] xt\zeeii the plaintiff and non-parties as irrelevant and ~mmater~al since a n j such non-compliance does not con titute ci viable defense to foreclosure (5ec ZH re Marks. 2012 WI, 6554705 [9th Cir BAP iCa1.).3012]: I re Correin. 452 B.R. 319 [ 1st Cir. BAP (Mass), 201 I]; HSBCBunk USA, N.A. v n H ~ r r l m n2013 WL 515432 [N D. 111 .2013]; I n re Wmhingfon,469 B R. 587 [Bkrtcy W D PA. . 201 2 1. - 1 l m m w c r hcr, m \1unding to ( I \ ,ert LI fciiliii,eto tonqdy ivrth P8C,.1 pro\iition\ cirzd 5uc.h I ~ O I I ( o i ~ i , ~ i ~ i i ri i i ~ o t ( I defen5e to u jol-eclo\z,re N C I I ~ I I ) \ ii e Although the plaintiffattempts to bolster its claim of standing by its reliance upon an assignment ofniortgnge dated January 27,2010 that is attached to the moving papers, such reliance is unavailing. A revie\{ ofthat assignment reveals that it does not include an assignment ofthe note which is fatal to the purported assignnient of the mortgage alone (see Citimortgage, Ilzc. v Stosel, 89 AD3d 887, 934 NYS2d 182 [2d Dept 201 11; USBankNntl. Assn. vMcrdero, 80AD3d751,915NYS2d612 [2d Dept 201 1)). All of the defendant s challenges to the propriety of the assignment or its execution are dismissed as academic (see Bunk ofNew YorkMellon Trust Co. N.A. vScrcltar, 95 AD3d 695, szy?l-a). Tjiose portions of the defendant s cross motion for dismissal of the plaintiff s complaint due to a purported laclc of standing on the part of the plaintiff are denied and the defendant s SECOND dfirmati\ e defense asserting such claim is dismissed. AISO denied are those portions of the defendant s cross motion wherein she seeks dismissal of the complaint due to the plaintiff s failures to turn over certain documents demanded by defendant s counsel. Such documents include docurnents regarding its standing to sue under the PSA . As indicated ~ b o v ehowever, standing under the PSA is irrelevant as the plaintiff established that standing , under its holder and assignee status due to the transfer of the indorsed note to it prior to the comniencement of this action. The plainti f-s complaints about the withholding of correspondence regarding statements of the account of the mortgage are unavailing as the defendant was in possession of thosc lctters as cvidcnced by hcr production of them i n support of her cross motion (see page 40 of defense counsel s Memo of Law in support of cross motion). The cross moving papers are simply refused to disclose documents and devoid ol m y ebidence tending to establish that the plaintiff~villfully other infoimation relevant and material to the claims or defenses asserted in this action to which the dcl encfant was entitled to under CPLR 3101 (,see Orgrl vSfewart Title Ins. Co., 91 AD3d 922. 938 N fS3d 1 3 I (2tl Dept 30121; .4uerbac/i 1 Klein, 30 AD3d 45 1 , 8 16 NYS2d 376 (2d Dept 20061). N o i did the defendant demonstrate that the plaintif !-s motion for summary ludgmcnt ~ ~ prcmatui c IS tlic ciel endant failcd to offer a siiflicient evidentiarj basis to suggest that furthcr discovery to ~ c l ~ e\ idencet(see Frietl/anrler Qq., ~ ~ m LLCv .iyorinc/e, 94AD3d 693, 943 NYS2d 5 78 17iI l)i.pt 10 1.3 I. S ~ t ~ e d b ~ / / / h , i l B 1~Ha/r,4ve. Borrower, L L C . 89,2113d 022, 932 NYS2d 540 12d I k p t 3 0 I 1 I IVccfporfI n $ . Co. v Alterfec Energ13 Corzservatiorr, LLC. 12 AD3d 1207. 921 NYS2d 90 1 d 1 3 I k p t 201 1 1 . JPzWorguir C/rci.seBank,N.A.vAgne//o,62,2D3d662, 878 NYS2d 397 (2d Dept 2009)) !iiCt! Icad 1 5 [* 17] 1 lie ileiimtaiit's demands for dismissal of the complaint pursuant to CPLR 3126 or for an order ciiiwting the plaintiff. to furnish certain discovery items pursuant to CPLli 3 126 arc thus denied. 'I'he defendant's cross moving papers do not contain a demand for summary judgment on her 1.01.1 I Counterclaim in which she asserts a claim for damages under the Federal Truth-in-Lending KI'I I am: [ T I 1 AI. Discussion of that defense is advanced only as opposition to the plaintifYs motion-inchiel' wherein it seeks dismissal of the ;dl counterclaims and affirmative defenses. Under these circumstances, the court reserves its determination as to the nature, scope and viability and/or merits o l ' t ! delendant's FOURTH counterclaim until it considers the merits ofthe plaintiff's motion-in-chief ~ ii)llowing the hearing on the predicate question regarding service ofthe RI'API, 1304 default notice. 111view of the foregoing, the courts denies the defendant's cross motion except the unresolved portions concerning service of the RPAPL, 5 1304 notice that is the subject of the hearing scheduled herein. fhe court hereby adjourns the plaintiff's motion (#001) for summary judgment and other relief, including the appointment of a referee to compute, to .June 7 , 2013, on which date, the court shall condiict <i liearing limited to the issue of service ofthe IWAPL 3 1304 notice. Iiarccl: hl'ircdY 20 13

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