OneWest Bank FSB v Mainella

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OneWest Bank FSB v Mainella 2013 NY Slip Op 31100(U) May 3, 2013 Sup Ct, Suffolk County Docket Number: 05557-10 Judge: Hector D. LaSalle 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.: 05557-10 SUPREME COURT - STATE OF NEW YORK IAS PART 48 - SUFFOLK COUNTY PRESENT: Hon. HECTOR D. LASALLE Justice of the Supreme Court X ONEWEST BANK FSB, Plaintiff, -against- THOMAS MAINELI,A; JOHN DOE #1-5 AND JANE DOE #1-5 said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons o r corporations, if any, having o r claiming an interest in or lien upon the premises being foreclosed herein, Motion Date: 9-7-12 Adj. Date: Mot. Seq. #001-MotD FEIN, SUCH & CRANE, LLP Attorneys for Plaintiff 747 Chestnut Ridge Road Suite 200 Chestnut Ridge, N. Y. 10977-6216 RADOW LAW GROUP, P.C. Attorney for Defendant Thomas Mainella 1010 Northern Blvd., Suite 208 Great Neck, N. Y. 11021 Defendants. read on this motion for summary iudgment and an order Upon the following papers numbered 1 to 13 o f rcfcrence; Noticc of Motion/Order to Show Cause and supporting papers 1 - 6 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 7 - 10 ; Replying Affidavits and supporting p a p c r s a - 13 ; Other ; (4met-irfterlresnmgcemmtilrstrl . ) it iv, ORDERED that this motion by the plaintiff for, inter alia, an order: (1) pursuant to CPLR 32 12 awarding suiiimary judgment in its favor against the defendant Thomas Mainella and striking his answer; (2) pursuant to RPAPL 9 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple pnrccls; and (3) amending the caption, is determined as indicated below; and it is ORDERED that the plaintiff is directed to file a successive notice of pendency, which shall include a relkrence to the Legal Description (Schedule A ) recorded with the mortgage, reformed herein b j referring to lot numbers 399 to 407, in Block 4, instead of lot numbers 399 to 4007, in Block 4 , within sistj (60) days of the date herein (see, CPLR 6513; 6516[a]; Aames Funding Corp. v Horrston, 57 ADM 808,872 NYS2d 134 [2d Dept 20081, lvdisnzissed 12 NY3d 896,884 NYS2d 677 [2008]; EMC hftge. Corp. v S e r u m 2 AD3d 772,769 NYS2d 408 [2d Dept 20031; Horowitz v Griggs, 2 AD3d 404, 767 NYS2d 860 [2d Dept 20031); and it is [* 2] OneWest I3ank FSB v Mainella 05557-10 IllClex No.: Pg. 2 ORDERED that the plaintiff shall submit with the proposed judgment of foreclosure, a certificate of conformity with respect to the affidavits of the plaintiffs officer, executed outside the State of New York (.ret, CPLR 23091~1;U S . Bank Natl. Assn. v Dellarmo, 94 AD3d 746.942 NYS2d 122 [2d Dept 201 21); and it is further ORDERED that the plaintiff is directed to serve a copy of this Order with notice of entry upon all partics \vi10 have appeared herein and not waived further notice pursuant to CPLR 2103(b)(l), (2) or (3) \vithin tliirt!? (30) days of the date herein, and to file the affidavits of service with the Clerk of the Court. This is an action to foreclose a mortgage on residential real property known and described as 12 Oxford Avenue, Melville, New York 1 1747 (the property). The defendant Thomas Mainella (the defendant mortgagor) executed a fixed rate balloon note dated June 14, 2006 (the note) in favor of Indyhlac Bank, F.S.R. (IndyMac) in the principal sum of $408,000.00. To secure said note, the defendant mortgagor gai'e IndyMac a mortgage also dated June 14, 2006 (the mortgage) on the property. The mortgage indicates that Mortgage Electronic Registration Systems, Inc. (MERS) was acting solely as a nominee fbr TndyMac and its successors and assigns and that, for the purposes of recording the mortgage, MERS was the mortgagee of record. The note contains an undated, blank endorsement without recourse by IndyMac. By assignment dated January 29, 2010 and recorded on February 19, 2010, MERS as noniinee for IndyMac transferred its interest in the mortgage to OneWest Bank, F.S.B. (the plaintiff). The clefendant mortgagor allegedly defaulted on his monthly payment of interest due on June 1, 2009, and each monlh thereafter. After the defendant mortgagor allegedly failed to cure his default, the plaintiff coininenced the instant action by the filing of a summons and verified coinplaint on February 9, 201 0. Issue \vas joined by the service of 1he defendant mortgagor's verified answer sworn to on February 23.201 0. B J his answer, the defendant mortgagor denies all ofthe allegations in the complaint and asserts ~ eleven atlirmative defenses, consisting of, among other things, failure to state a cause of action, lack of legal capcityistanding. failure to allege a viable cause of action, a release, lack of subject matter jurisdiction, unclean hands as a result of fraudulent misrepresentations, unlicensed to conduct business in New York, non-compliance with CPLR 2309(c), unconscionable loan terms, and failure to comply with: the provisions of Banking Law $ 3 6-1,6-m; and 590(b), RPAPL $5 1302, 1303, and 1304; CPLR 32 15(g)(3); Federal Equal Credit Opportunity Act; Real Estate Settlement Procedures Act; Truth In Lending Act: Federal Fair I-Iousing Act, 42 USC 3604,3605; CPLR 3408; Home Ownership and Equity Protection Act; and General Business Act 5 349, lack of an agency relationship between the assignor and assignce, and the property was allegedly an excluded asset of the assumption agreement between the plaintiff and Federal Deposit Insurance Corporation. The remaining defendants have neither answered nor appeared i n this action. The plaintiff'now moves for, inter alia, an order: (1) pursuant to CPLR 3212 awarding summary ,judgment i n its favor against the defendant Thomas Mainella and striking his answer; (2) pursuant to RPAPL $ 132 1 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (3) amending thc caption. In response, the defendant mortgagor has filed opposition papers. A reply has been [* 3] OneWest Hank FSB v Mainella Index No.: 05557-10 Pg. 3 filed by the plaintif i: I n support of the motion, the plaintiff proffers the pleadings, the mortgage, the note, the assignment, a notice ordefault dated July 30, 2009, a 90-day notice dated May 5. 2009, an affidavit of nicrit, an affidavit i n support, and an affirmation by counsel. In the complaint, the plaintiff alleges, among other things, that i t is a banking corporation licensed and organized pursuant to the laws of the United States of America. and that it is the owner of record of the bondinote and the mortgage securing the propei-ty. 111 the affidavit of merit, an officer of the plaintiff alleges, inter alia, that she has knowledge of the facts and circumstances herein by her review of the plaintiffs records concerning this matter. According to the officer, tlie instant mortgage loan has been in default continuously since June 1, 2009. The plaintiff provided a notice of default as well as a 90-day notice to the defendant mortgagor reminding him o f his default and advising him of the potential legal consequences if he failed to timely cure his default. Tlic ofiicer fiii-theralleges, inter alia, that the 90-day pre-foreclosure notice was sent by registered or certified mail and also by first class mail to defendant mortgagor at his last known address, and if different. to the residence that is the subject of the foreclosure. In the affidavit in support, plaintiffs other officer alleges that. based upon his review of the plaintiffs business records, the plaintiff is the owner of, or otherwise entitled to enforce, the note. In his affirmation, counsel avers that the assignment of the mortgage by MERS as nominee for IndyMac to the plaintiff dated January 29, 20 10 was recorded in the Suffolk County Clerk s Office on March 19, 201 0. With respect to the ancillary relief requested by tlie plaintifC counsel requests that Schedule A of the legal description recorded with the mortgage be reformed to correct a scrivener s error in that the first paragraph should read, among other things, lot numbers 390 to 407. in Block 4. instead of lot numbers 399 to 4007, in Block 4 . 111 opjmitioti to the motion, tlie defendant submits, inter alia, an affidavit by the defendant inortgagor and an affirmation by counsel. In his affidavit, the defendant mortgagor alleges that he missed his monthly mortgage payment to the plaintiff in June, 2009 when he sustained a significant income reduction. Aiier his default, he attempted to make a payment to the plaintiff, but that it was re.jected because it \\as not in the form oi a certified check. The defendant mortgagor requests that the plaintiff extend a loan modification to him so that he may resume his payments. In his affirmation, counsel requests the Court to schedule an additional settlement conference, asserting that a loan modification appl icntion is currently being prepared by the defendant mortgagor for submission to the plaintiff. I n rcpl), the plaintiff opposes tlie request for an additional settlement conference, arguing, inter alia. that f i i l l consideration has already been given to this case by virtue ofthe five settlement conferences which were already held. Counsel further avers that this case was ultimately dismissed from the conli.rcnce program because the defendant mortgagor failed to produce documentation required for consideration of n loan modification. A plaintiff iii a mortgage foreclosure action establishes a prima facie case for summary judgment by submission of the mortgage, the note, bond or obligation, and evidence of default (see, Valley Natl. Btrrth ~Deutsclre, AD3d 691,930 NYS2d 477 [2d Dept 201 I]; Wells Fargo Bank v Karla, 71 AD3d 88 1006.896 NYS2d 68 I [2d Dept 201 01; FVash. Mut. Bank, F A . v O Conrmr, 63 AD3d 832,880 NYS2d 696 [2d Dept 20091). The burden then shifts to the defendant to demonstrate the existence of a triable issue of fact 21s to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or [* 4] OneWest Bank FSB v Mainella I ~ i d NO.. 05557-1 0 e~ l g. 4 ol7pressiL.e or unconscionable conduct on the part of the plaintiff (Capstone Bus. Credit, LLC v Imperia Fanlily Real[v, LLC, 70 AD3d 882, 883, 895 NYS2d 199 [2d Dept 20101). M liere the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitlcd to relief (,we, CitiMortgnge, Iitc. v Rosenthal, 88 AD3d 759, 931 NYS2d 638 [2d Dept 20 1 1 1). A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced (see,Bank of N. Y. v Silverberg, 86 AD3d 274, 926 NYS2d 532 [2d Dept 201 I]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept ?009]). As a gcneral matter, once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note (Bank of N. Y. v Silverberg, 86 AD3d 274, supra at 280; see, Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674,838 NYS2d 622 [2d Dept 20071). By contrast, a transfer o f a mortgage without an assignment of the underlying note or bond is a nullity, and no interest is acquired by it (Bank of N. Y. v Silverberg, 86 AD3d 274, supra at 280; see, LaSulle Bank Natl. .4SS12. v Ahearn. 59 AD3d 91 1, 875 NYS2d 595 [3d Dept 20091). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is suflicient to transfer the obligation ( U S . Bank, N.A. v Collymore, 68 AD3d 752, supra at 754). I3> its submissions, the plaintiff established its prima facie entitlement to summary judgment on the complaint (.\CY>, CPLR 3212; RPAPL 9 1321; HSBCBank USA, N.A. VSchwartz, 8 8 AD3d 961,931 NYS2d 528 [ 2d Dcpt 201 11; Coirntrywide Home Loans, Inc. v Delpltonse, 64 AD3d 624, 883 NYS2d 135 [?d Dept 20091). The plaintiff produced the endorsed note and the mortgage executed by the defendant mortgagor, the assignment, as well as evidence of nonpayment (see, Fed. Home Loan Mtge. Corp. v Karastatliis. 237 AD2d 558,655 NYS2d 63 1 [2d Dept 19971; First TrustNntf.Assn. vMeisels, 234 AD2d 414,651 NYS2d 121 [2d Dept 19961). Hie plaintiff also demonstrated that, as holder of the note with proper endorsement, and as the assignee of the mortgage, it has standing to commence this action (see, Bank ofNew York v Silverberg, 86 AD3d 274, szipw: First Trust Natl. ASSM. Meisels, 234 AD2d 414, sziprcr). The plaintiff submitted, v intcr alia, arfidaiiit from two of its officers wherein it is alleged, inter alia, that the plaintiff is the holder and scrvicer of the note. Additionally, the documentary evidence submitted includes, as indicated above, the notc transl crred via an endorsement in blank (see, S/utsky v Blooming Grove Inn, Inc., 147 AD2d 208. 542 NI S2d 721 [2d Dept 19891). The effect of an endorsement is to make the note payable to bearer pursuant to IJCC 1-20 l(5) (see, UCC 3- 104; Frnnzese v Fidelity N. Y., FSB, 2 14 AD2d 646, 625 NYS2d 275 [2d Dept 19951). When an instrument is indorsed in blank (and thus payable to bearer), it m a y b e ncgotiatcd by transfer of possession alone (see. UCC 5 3-202; 4 3-204; 4 9-203[g]). Furthc rniore. IJCC 9-203(g) explicitly provides that the assignment of an interest of the seller or grantor 01. :I st.curit> interest in the note automatically transfers a corresponding interest in the mortgage to the assignee. lurther. the assignment dated January 29,201 0 memorialized the transfer of the mortgage and note to the plaintiff. TIILK, plaintiff established that it had possession of the note, prior to the the commeiicc mciitofthe action, and was the holder thereof as such note contained an endorsement in blank on the face thereof. Additionally. the plaintiff submitted sufficient proof to establish, prima facie, that the remaining afliriiiative defenses set forth in the defendant mortgagor s answer are subject to dismissal due to their [* 5] OncWcst Hank ¬SI3 v Mainella I I I ~ ~ X 05557- 10 NO.: Pg. 5 unmcritorious naturc ~(sce, Becher v Feller, 64 AD3d 672, 884 NYS2d 83 [2d Dept 20091; Wells Fargo BmX fifinti., Nntl. Assn. v Perez, 41 AD3d 590, 837 NYS2d 877 [2d Dept 20071; Coppa v Fabozzi, 5 AD3d 7 8,77 3 NYS2d 604 [2d Dept 20041 [notriable issue offact ruisedas to the merits ofunsupported 1 r i f f i i m r f id c~ e t i L ~ c s.see crlso, Wells Fargo Bank, N.A. v Van Dyke, 101 AD3d 638, 958 NYS2d 331 ~ f ]: I 1 st Ilcpt 20 12 Ifoi.ec.lo.sirig~,lnintiffhas no obligation to rnodifi loan];Gillman v C l m e Marihattaii Bnnh, N.,4., 73 NY2d 1,537 NYS2d 787 [ 19881;Baron ASSOC., LLC v Garcia Group Enters., 96 AD3d 793. 946 NYS2d 61 1 12d Dept 20121 [znnconscionability not a defense]; Patterson v Somerset Invs. Corp.. 06 AD3d 8 17, 8 17, 946 NYS2d 21 7 [2d Dept 20121 [ ayarty who signs a dociinient M ithout any I U I I CYC*UJCJfo/*hui,ing ftriletl f o read it is conclusively hound by its terms ];Emigrant Mtge. Co, Inc. ~ I Fitzpntrick, 95 AD3d 1 169, 945 NYS2d 697 [2d Dept 20121 [insufficient evidence presented to mise ( i irirrhle I VA / i o of ~ L I C I n.r to whether the plaintiff made matevially misleading stafenienfs when locrn c/(icut~tcni\1 c1i.e ~ ~ I e c ~ i ~ l ~ ~ ~ ~ ~ ~ . i t t e ~ i ] ; ALLCvMentesana, 79 AD3d 1079, 915 NYS2d 951 1 Co., r g e i i t M t g e . 12d I k p t 20 1 0 [iiriciffot.tlrrkili!I, of loan will not support damages claim aguinst lender and is no1 a 1 t k f c t ? \ e f o ( I ~0~*ec10s~1rc crction]; Grogg vSoutlz Rd. ASSOCS., L.P., 74 AD3d 1021, 907 NYS2d 22 [2d Dept 201 0I [ihc nwi.c d u ~ i u of receipt ofthe notice oj default is insujficient to reRttt the presuniptioii of l de/iiw;i~]: Mornles v,4MSMtge. Servs., Iiic., 69 AD3d 691,692, 897 NYS2d 103 [2d Dept 201 01 [CPLR 30 I6lhl i ~ c ~ p i i i .thtit the cir.ctmistnnce.s o @aud be stated in detail, including specific dutes and c,~ f itcriis1; CFSC Cnpitnl Cory. X V I I v W. J. Baclzman Mech. Sheet Metal Co., 247 AD2d 502, 669 NYS2d 329 [ I $98],I1,(li.~~7i.s.st d92NY2d 919,680NYS2d459 [1998]; ConnecticutNatl. BankvPeach Lnhe Plnzn, 204 AD2d 909,612 NYS2d 494 [3d Dept 19941 [dejense based upon the cloclrrne ofirncleun hcrntl.\ 1trck.c n w i f i t 7hrrea ckefendant.fai1.s to comeforward with admissible evidence ofshowing iiniiiorcrl or i i t ~ ~ . o ~ ~ r c ~ ilwhcrvior];Charter One Bank, FSB v Leone, 45 AD3d 958, 845 NYS2d 5 13 [3d Dept oi~cihl~~ 20071 [no cwupi~tcniciYi1ence of an accord iind safisfaction]). As the plaintiff duly demoiistrated its entitlement to judgment as a matter of law, the burden of proot sliiited to the defendant mortgagor (see, HSBC Bank USA v Merrill, 37 AD3d 899, 830 NYS2d tJi.sini cd 8 NY3d 967,836 NYS2d 540 [2007]). Accordingly, it was incumbent upon the 598 [2007l. I ] ? tfcfcndant iiiorfgagor to produce evidentiary proof in admissible form sufficient to demonstrate the esis(cncc of a triablc issue of fact as to a boiia fide defense to the action (see, Anmes Funding Corp. v Iforrstoii. 44 AD3d 692, 543 NYS2d 660 [2007], lv denied 10 NY3d 704, 857 NYS2d 37 120081; Barorz Assoc., LLC v Gorcin G ~ O Eiiters., Inc., 96 AD3d 793, supra; Wash. Mut. Bank v Vnlencin, 92AD3d II~ 774.039 N1 S?d 73 I2d Dept 20 121; Grogg vSoutlz Rd. ASSOCS., 74 AD3d 102 1, supra). In instances LP, \~licrc dell.ndnnt hils to oppose a motion for summary judgment, the facts, as alleged in the moving n ppcrs. may 1~ deemed admitted and there is, in effect, a concession that no question of fact exists (see gciw~dh*. Krrehrie & Nagel, Inc. v Baiden, 36 NY2d 539, 369 NYS2d 667 [ 19751; see NISO, Madeline D :tntltoiiy E/iter.y., Inc. ~Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [ l s tDept 20121; Argent Mtge. eo., LLC I ilfentesnnn, 79 AD3d 1079, supra; Madison Park Invs., LLC v Atlantic Lofts Corp., 33 A4isc:d 12 15,2. 941 NYS2d 538 [Sup Ct, Kings County 201 1I ) . In opposition to the motion, the defendant mortgagor has offered no proof or arguments in support o fan! 01 his plcaded def enses; instead, lie requests an additional foreclosure settlement conference. In coiiip11;iiicc \\ ith C PLR 3408 a series of settlement conferences were held in this Court s Foreclosure C onf crencc Part on September 2, November 3 and December 20,2010. On December 20,2010, this case [* 6] OneWest Rank FSB v Mainella I11de~ No.: 05557-1 0 I g. 6 dismissed from the conference program as a loan modification or other settlement had not been achieved. An additional settlement conference was held before Part 48 on July 13,2012 and adjourned a final time to October 19, 2012 for a status conference, at which time this action was again referred as an IAS case. Accordingly, tlie conference requirement imposed upon the Court by CPLR 3408 and/or the Imvs of2008. Ch. 472 $ 3-a as amended by Laws of 2009 Ch. 507 $ 10 has been satisfied. No further confercnce is required under any statute, law or rule. Accordingly, the defendant mortgagor s request for an additional mandatory settlement conference, which was improperly asserted in his opposition papers and scrved jsitliout the benefit of a cross motion, is denied (see, CPLR 22 15; see also, CitimortgageZnc. v Lepor~ . 2012 NY Misc LEXIS 4282,2012 WL 3947031,2012 NY Slip Op 32290[U] [Sup Ct, Suffolk Cou11ty 20 12 I 1. \\ as In an!! e\ cnt, ihe defendant mortgagor is not entitled to a judicially mandated loan modification, :is a foreclosing plaiiitiff has no obligation to modify the terms of its loan before or after a default in pqment (sec. I4 ells Fargo Bnnk, N.A. v Van Dyke, 101 AD3d 638,958 NYS2d [ l Dept 20121; EMC Mtgr. Corp. I) Stewart, 2 AD3d 772, supra; United Cos. Lending Corp. v Hingos, 283 AD2d 764, 724 NYS2d 134 [3dDept 2001];FirstFed.Sav. BankvMidura,264AD2d407,supra; OneWestBank,FSB i*Davies,38 blisc3d 1230[A],2013NY MiscLEXIS921,2013 WL846573,2013NY SlipOp50341[U] [Sup Ct, Sui foll\ Coiinty 20131; Citinzorigcrge Znc. v Lepore, 2012 NY Slip Op 3229O[U], supra; JP Morgtrn Clinse Bnnk, N.A. Ilardo, 36 Misc3d 359, 940 NYS2d 829 [Sup Ct, Suffolk County 20121). IJ fhus. even wlicn viewed in the light most favorable to the defendant mortgagor, his submissions arc insuflicient to raise any genuine question of fact requiring a trial on the merits of the plaintiffs claims ibr foreclosure and sale, and insufficieiit to demonstrate any bona fide defenses (see, CPLR 321 1[e]; see, Rossroch Fund I I , L,.P. v Comnznck Iiw. Group, Inc., 78 AD3d 920, 912 NYS2d 71 [2d Dept 20101; Nc.iglrborhood Hoirs. Servs. N, Y. City, Inc. v Meltzer, 67 AD3d 872, 889 NYS2d 627 [2d Dept 20091; Coclirm Inv. Co. Irrc. v Jocksort, 38 AD3d 704, 834 NYS2d 198 [2d Dept 20071). The plaintiff, thcreforc. is awarded summary judgment in its favor against the defendant mortgagor (see, Fed. Home Loail hftgc. Gorp. v Iinrastnthis, 237 AD2d 558, supra; see also, 2 N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392,892 NYS2d 21 7 [2009], Iv denied 14 NY3d 706, 899 NYS2d 755 120101). Accordingly, the dcfendanl nlortgagor s answer, and the affirmative defenses enumerated second and fourth through clevcnth contained therein, are stricken. B J ~ first and third affirmative defenses, the defendant mortgagor asserts that the complaint fails his to state a c;iusc oraction, however, the defendant mortgagor has not cross moved to dismiss the complaint on this ground (tee. B i d e r v Crrtinella, 58 AD3d 145,868 NYS2d 101 [2d Dept 2008]), and. in any event, the plaintiff has established its prima facie entitlement to summary judgment as indicated above. l liercforc. thc lirst and tliird affirmative defenses are surplusage, and the branch of the motion to strike such tlcfctises is denied as moot (see, Old Willianzsburg Candle Corp. v Seneca Ins. Co., 66 AD3d 656, 886 NYS2d 380 [2d Dcpt 20091; Schmidt s Wlzolesnle, Inc. vMiller & Lelzmcrn Const., Znc., 173 AD2d 1003. 569 NYS2d 836 [3d Dept 19911). The branch of the instant motion wherein tlie plaintiff seeks an order amending the caption by substitiiting N i c h ~ lMainella as a party defendant for John Doe #1, Donna Mignone as a party defendant ~i [* 7] OncWest I3anlt FSB v Mainella I I I ~ C SNO.: 05557-10 I g. 7 lbr John Doc #2 and Nicole Mignone as a party defendant for Jane Doe #3, and excising the fictitious defendants sucd herein as John Doe #2-5 and Jane Doe #3-5, is granted pursuant to CPLR 1024. By its submissions. the plaintiff established the basis for this relief (see, Flagstar Bnnk v Bellafiore, 94 AD3d 1044. C)43 NYS2d 5 5 1 [2d Dept 20121; NeiglzborlzoodHous. Servs. N. Y. City, Inc. vMeltzer, 67 AD3d 872. 5 ~ p r u ) All liiturc proceedings shall be captioned accordingly. . By its moving papers. the plaintiff further established the default in answering on the part of the new11 substituted dclindants, Nicholas Mainella, Donna Mignone and Nicole Mignone, as these dcfcndants never interposed answers (see, RPAPL 9 1321; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 914 NYS2d 647 [2d Dept 201 11). Accordingly, the defaults of all such defaulting defendants are fixed and determined. Since the plaintiff has been awarded summary judgment against the defendant mortgagor, and has established the default in answering by Nicholas Mainella, Donna Mignone and Nicole Mignonc, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject notc and inorlgagc (see, RPAPL $ 1321; Ocwen Fed. Bank FSB v Miller, 18 AD3d 527, 794 NJ S2d 650 [2005].cq?pecrl disniissed 5 NY3d 824, 804 NYS2d 37 [2005]; VI. Fed. Bank 1) Cliase, 226 ;\D2d 1034,641 NYS2d 440 [3d Dept 19961; Bnnk ofE. Asia, Ltd. vSniith, 201 AD2d 522,607NYS2d 431 [2d I k p t 19941). The branch o f the motion seeking leave to reform the Legal Description (Schedule A ) recorded uith the niortgage, so that the first paragraph reads, lot numbers 399 to 407, in Block 4, instead of lot numhers 399 to 400 7, in Block 4 , granted (see generally, Tlzayer v Finton, 108 NY 394 [1888]; is L o m i i . ~ Jackson. 19 Johns 449 [ 18221; Mejier v Stout, 79 AD3d 1666, 914 NYS2d 834 [4t Dept I 20 10 I ) . By its submissions, the plaintiff demonstrated that the specific reference requested herein should be added. and that no prejudice has been shown to any of the defendants. Accordiiiglj , this motion by the plaintiff is determined as indicated above. The proposed order appointing a referee lo compute pursuant to RPAPL 5 1321 has been signed herewith. The Ihrcgoiiig constitutes the Order of this Court. Dated: M a j 3, 2013 Riverhcad, N Y - FINAL DlSPOSITlON X NON-FINAL DISPOSITION

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