US Bank Natl. Assn. v Samuels

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US Bank Natl. Assn. v Samuels 2015 NY Slip Op 32493(U) December 4, 2015 Supreme Court, Suffolk County Docket Number: 15313/13 Judge: Thomas F. Whelan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Ml:f>,IOKANDlJM DECISION ORDER lNDEXNo. 15313113 COPY SUPREME COURT - STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE: 7/22/J 5 SUBMIT DATE: 11/13115 Mot. Seq.# 002 - MG Mot. Seq.# 003 - XMD CDISP: YES ---------------------------------------------------------------X US BANK NATIONJ\L ASSOCIATION, as Trustee for Mastr Asset Backed Securities Trust 1006-AM2, GROSS POLOWY, LLC Attys. For Plaintiff 1775 Wehrle Dr. - Ste. 100 Williamsvi lie, NY 14221 Plaintiff, HELSOP & KALBA, LLP -against- Attys. For Defendant Samuels 14 7 Prince St. - Ste. 21 Brooklyn, >IY 11201 JJ\NET M. SAMUELS, AMERICAN GENERAL HOME EQUITY, INC., CJ\PITJ\L ONE BANK, USA, NA, SHADAE PUSEY, Defendants. : ---------------------------------------------------------------X Upon the following papers numbered I to _ IO read on this motion by the plaintiff for confin'nation of the report _ of the referee to compute and issuance ofa judgment and cross motion by defendant Saumuels to dismiss ; Notice of Motion/Order to Show Cause and supporting papers J...:.L; Notice of Cross Motion and supporting papers _4"'--7 - - - ' J\nswering Affidavits and supporting papers 8-9 ; Replying Affidavits and supporting papers _ l_O_ _ Other ; (a11d afte1 liea1i11g eot211~el i11 support a11d opposed to tlie rnotio11) il is, ORDERED that this motion (#002) by the plaintiff for an order confirming the report of the referee to compute and for the issuance of a judgment foreclosure and sale is considered under RP APL J\rtide 13 and is granted; and it is further or ORDERED that the cross motion (#003) by defendant, Janet M. Samuels, for an order dismissing the complaint pursuant to CPLR 32 11 is considered thereunder and under CPRL 3408, 3215 and RP APL Article 13 and is denied. The plaintiff commenced this action in June of2013 to foreclose the lien of a February 23, 2006 mortgage given by defendant, Janet M. Samuels, to Aames Funding Corporation d/b/a Aames Home Loan, to secure a mortgage note of the same date likewise given by defendant Samuels. By a written assignment of said note and mortgage executed by an officer of Aames F unding Corporation d/b/ a /\a mes Home Loan on f ebruary 28, 2006, the note and mortgage were transferred to the plaintiff. The loan went [* 2] US Bank v Samuels ct al Index No. 15313113 Page 2 into default in February of 2008 and remains in default to date. Following service of the summons and complaint in June of 2013, defendant Samuels defaulted in answering as did the remaining defendants se rved w ith process. In March of 2014, the plaintiff moved for an order of re ference on dcfaul t and such motion was granted by order dated October 23, 2014. I3y the instant motion (#002), the plaintiff moves for an order confirming the report of' the referee to compute and the issuance of a judgment of foreclosure and sale. The motion is opposed by defendant Samuels in cross moving papers prepared by her counsel and affidavit by the defendant herselC. She therein admits that she defaulted in payment obligations due to diminishment in her. income but she contends that the plaintiff and its agents are to blame because they took advantage of her naivety, lack of knowledge and sophistication in the legal processes in which she was enveloped . Defense counsel claims that defendant Samuels is entitled to a dismissal of the complaint pursuant to CPLR 32 1 l under a host of theories, including the abandonment of the plaintiffs claim pursuant to CPLR 3215(c), its fa ilure to comply with statutory notice requirements imposed by RP APL§ 1303 and § 1304 and a long list ofunpleaded affirmative defenses including a purpo1ted lack ofstanding, ladies, and non-engagement in loss mitigation. In addition, defendant Samuels claims, in her affidavit in support of her cross motion, that her default in answering should be excused because of her own naivety in understanding the ramifications of her defaults in payment and in answering the complaint, defalcations on the part of a mo1tgage loan servicing company she retained to provide free " legal advice" and the plaintiff's conduct in fa iling to negotiate a resolution in good faith. For the reasons stated below, the plaintiff's motion (#002) is granted while the defendant's cross motion (#003) is in all respects denied. Absent a valid jurisdictional or abandonment defense, a party in default may not appear in the action and contest the plaintiffs right to relief unless the defaulter can establish grounds for the va·c atur of his or her default (see Southstar III, LLC v Enttienne, 120 AD3d 1332, 992 NYS2d 548, 549 l2d Dept 2014]; JP Morgan Mtge. Acquisition C01p. v Hayles, 113 AD3d 821 , 979 N YS2d 620 [2d Dept 20 14]; Schwartz v Reisman, 112 AD3d 909, 976 NYS2d 883 [2d Dept 2 013] ; U.S. Bank N.A. v Gonzalez, 99 AD3d 694, 694- 695, 952 NYS2d 59 [2d Dept 2012]; McGee v Du11n, 75 ADJd 624, 625 , 906 NYS2d 74 [2d Dept 2010]). '"A defendant who has failed to appear or answer the complaint must generally provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action to avoid the entering of a default judgment or to ext end the time to answer"' (Mellon v Jzmirligil, 88 AD3d 930, 931 NYS2d 667 [2d Dept 20 11 ], quoting, Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 92 1NYS2d643 [2d Dept 201 1.J; see Mannino Dev., Inc. v Linares, 117 AD3d 995, 20 14 WL 2198432 [2d Dept 2014]; HSBC Bank USA, N.A. v Lafazan, 115 AD3d 647, 983 NYS2d 32 l'2d Dept 20 14]; JP Morgan Chase Bank v Palma, 114 AD3d 645, 979 NYS2d 832 [2d Dept 20141; Diederich v Wetzel, 112 AD3d 883 , 979 NYS2d 605 [2d Dept 20131; Community Preserv. Corp. v Bridgewater Co11domini11ms, LLC, 89 A 0 3d 784, 785, 932 NYS2d 378 [2d Dept 20 11 ]; Maspetlt Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890, 909 NYS2d 403[2d Dept 201 OJ; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 914 NYS2d 647 [2d Dept 201 1]; Equicretlit Corp. ofAm. v Campbell, 73 AD3d 1119, 1120, 900 NYS2d 907 [2d Dept 201 OJ). Here, counsel for defendant Samuels asserts that the plaintiff abandoned its claim for fo reclosure and sale as contemplated by CPLR 32 lS(c) because the plaintiff foiled to move for judgment within the [* 3] US Bank v Samuels et al Index No. 15313113 Page 3 one year time limitation period from the default in answering prescribed by that statute. For the reasons stated, the court finds this claim to be wholly lacking in merit. CPLR 3215(c) requires that a plaintiff commence proceedings for the entry of a default judgment within one year after the default occurs or demonstrate sufficient cause why the complaint should not be dismissed as abandoned. In all cases wherein the plaintiff has made an application to the court for the entry of a default judgment within one year of the defendant's default, even if unsuccessful, the court may not later dismiss the complaint as abandoned pursuant to CPLR 3215(c) (see GMAC Mtge., LLC v Todaro, 129 AD3d 666, 9 NYS3d 588 [2d Dept 2015]; Wells Fargo Bank, N.A. v Combs, 128 AD3d 812, 2015 WL2214013 [2d Dept 2015]; HSBC Bank, USA, N.A. vA/exander, 124 AD3d 839, 4 NY3d 47 [2d Dept 2015]; Mortgage Elec. Registration Sys., Inc. vSmith, 11 1AD3d804, 975 NYS2d 121 [2d Dept 2013]; Jones v Fuentes, 103 AD3d 853, 962 NYS2d 263 [2d Dept 2013]; NoniJest Bank Minnesota, N.A. v Sab/off, 297 AD2d 722, 747 NYS2d 559 [2d Dept 2002]; Brown v Rosedale Nurseries, Inc., 259 AD2d 256, 686 NYS2d 22 [1 st Dept 1999]; Home Sav. of A m., F.A. v Gktmios, 230 AD2d 770, 646 NYS2d 530 [2d Dept 1996]). In the mortgage foreclosure arena it is well settled that foreclosing plaintiffs may not be deemed to have abandoned their claims under CPLR 3215(c) when they take "the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order ofreference" w1der RP APL 1321(1) within one year of the defendant's default (Klein v Cyprian Prop., Inc., 100 AD3d 711, 954 NYS2d 170 [2d Dept 2012]; see Wells Fargo Bank, N.A. v Combs, 128 AD3d 812, 10 NYS3d 121 (2d Dept 2015]; HSBC Bank, USA, N.A. vA/exander, 124 AD3d 839, 4 NYS3d 47 r2d Dept 20151; Home Sav. ofAm., F.A. v Gkanios, 230 AD2d 770, 646 NYS2d 530 [2d Dept 1996]). "lt is not necessary for a p laintiff to actually obtain a default judgment within one year of the default to avoid dismissal pursuant to CPLR 3215(c)" (US Bank Natl. Ass'n v Dorestant, 131AD3d467, 15 NYS3d 142 [2d Dept 2015] ; see Wells Fargo Bank, N.A. v Combs, 128 J\D3d 812, supra). "Where application is made to the court for the entry of a default judgment within one year of the defendant's default, the court may not refuse to enter judgment or dismiss the complaint as abandoned pursuant to CPLR 3215(c)" (Nowicki v Sports World Promotions, 48 AD3d 435, 851NYS2d270 [2d Dept 2008]). An application is made at the time its is served (see CPLR 2211 ). The outcome of a timely 3215(c) application is irrelevant because it i!s the mere interposition of an application for a default judgment within one year of the default that suffices for purposes ofCPLR 3215(c) (see HSBC Bank USA, N.A. vA/exander, 124 AD3d 838, supra; Brown v Rosedale Nurseries, Inc., 259 AD2d 256, 257, 686 NYS2d 22 [1st Dept 2009J;Ilome Sav. <>fAm., F.A. v Gka11ios, 230 AD2d 770, supra). Herc, the record reflects that the moving defendant was served with process on June 12, 20 I 3 by personal, in-hand delivery and that her time to answer or appear expired twenty days thereafter. The record further reflects that the plaintiff's motion for a default judgment was interposed in March of 2013, which was well within the one year time frame imposed by CPLR.3215(c). The fact that it was not granted by the Justice then assigned to this action until October 23, 20 14 is of no consequence under the controlling appellate case authorities cited above. The demand for dismissal of the complaint as abandoned pursuant to CPLR 3215(c) is thus denied. Defense counsel's claims that the complaint should be dismissed due to a failure on the part of the plaintiff to comply with notice pursuant to RP APL§ 1303 and§ 1304 arc unsupported by a denial of [* 4] US Bank v Samuels et al Index No. 15313/13 Page4 receipt by his client. Defense counsel's claims are thus asserted without personal knowledge of material facts and are belied by the affidavits and other proofs submitted on this motion and the record maintained by the court in this action. The demands for dismissal of the complaint on these grounds are thus denied (see Deutsche Bank Natl. Trust Co. v Quinn, 120 AD3d 609, 990 NYS2d 885 [2d Dept 2014]; Emigrant Mtge. Co., Inc. v Gosdin, 119 AD3d 639, 989 NYS2d 609 f2d Dept 2014]; Emigrant Mtge. Co., Inc. v Persad, I I 7 AD3d 676, 985 NYS2d 608 f2d Dept 2014]; Deutsche Bank Natl. Tr11st Co. v Spanos, I 02 AD3d 909, 961 NYS2d 200 [2d Dept 2013]). In addition, this claim is precluded in light of defendant Samuel's default in answering and the absence of any successful application to vacate such default (see PHH Mtge. Corp. Celestin, 130 AD3d 703, 11 NYS2d 871 f2d Dept 2015j). Equally unavailing is the standing defense assc11ed by the defense counsel as grounds for dismissal of this action or a denial of the plaintifPs motion. The law is now well settled that the standing of a foreclosing plaintiff is not an clement of its claim but instead is merely an affirmative defense which is waived by a mortgagor defendant's failure to assert it in either a timely pre-answer motion to dismiss or in an answer (see Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566, 568, 996 NYS2d 130 12d Dept 2015]; Deutsche Bank Trust Co. Am. v Cox, 110 J\D3d 760, 973 NYS2d 662, pd Dept 2013 1 ; JP Morgan Mtge. Acquisition Corp. vHay/es, 113 AD3d 821, supra; U.S. Bank Natl. Ass'n vDenaro, 98 AD3d 964, 950 NYS2d 581 f2d Dept 2012]; Capital One, N.A. v Knollwood Prop. II, LLC, 98 AD3d 707, 950 NYS2d 482 (2d Dept 2012); Countrywide Home Loans, Inc. v Delpllonse, 64 AD3d 624. 883 NYS2d 135 f2d Dept 2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007]). Once waived, a standing defense and others contemplated by CPLR 321 l(a), may not be resurrected and used to support an untimely motion to dismiss pursuant to CPLR 3211 because the untimely asse11ion of a motion to dismiss pursuant to CPLR 3211 (a) "will not operate to relieve a party's default in pleading" (Wenz v Smith , 100 AD2d 585, 473 NYS2d 527 l2d Dept 1984); see EMC Mtge. Corp. v Gass, 114 AD3d 1074, 981 NYS2d 814 [3d Dept 2014); U.S. Bank N.A. v Gonzalez, 99 AD3d 694, supra; McGee v Dunn, 75 AD3d 624, 625, 625, 906 NYS2d 74 [2d Dept 2011] supra; llolubar v Holubar, 89 AD3d 802, 802-803, 934 NYS2d 710[201 1]; Countrywide Jlome Loans, Inc. v Delp'1011se, 64 J\03d 624, supra). Nor may a waived standing defense be asserted as opposition to a motion for summary judgment (see Bank ofNew York Mellon Trust Co. v McCall, 116 AD3d 993, 985 NYS2d 255 [2d Dept 2014]; Warsowe Acquisition Corp. v DeNoble, 116 AD3d 949, 983 NYS2d 859 12d Dept 2014J; Deutsche Bank Trust Co. Am. v Cox, 110 AD3d 760, supra; Capital One, N.A. v Knollwood Prop. II, LLC, 98 AD3d 707, supra; JPMorgan Chase Bank, N.A. v Bauer, 92 AD3d 641, 938 NYS2d 190 [2d Dept 2012); HSBC Bank, USA vScllwartz, 88 AD3d 961, 931NYS2d528 l2d Dept 20111; U.S. Bank Natl. Ass'n v Eaddy, 79 AD3d 1022, 914 NYS2d 901 1 2010]). Finally, a waived standing defense may not be used to support an application to vacate a default under discretionary vacatur statutes such as CPLR 3012(d) or CPLR 5015(a)(l) (see Wells Fargo Ban/,, Natl. Ass'n v Laviolette, 28 A03d 105, 410 NYS3d 538 [2d Dept 2015]; HSBC Bank USA, N.A. v Simmons, 125 AD3d 930, 5 NYS3d 175 12d Dept 2015]; U.S. Bank, N.A. v Bernabei, 125 AD3d 541, 5 NYS3d 372 flst Dept 2015]; Citibank, N.A. v Swiatkowski, 98 AD3d 555, 949 NYS2d 635 [2d Dept 2012]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 931 NYS2d 638 (2d Dept 2011 l; HSBC Bank, USA v Dammond, 59 AD3<l 679, 875 NYS2d 490 (2d Dept 2009]). Contrary to the contentions of defense counsel, a lack of standing on the part of a foreclosing plaintiff is not an element of its claim for foreclosure and sale nor is it jurisdictional in nature so as to warrant dismissal of a complaint for such relief (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 [* 5] US Bank v Samuels et al Index No. 15313/l 3 Page 5 /\1)3d 239, 242-244, supra; see also Wells Fargo Bank, N.A. vA/i, 122 AD3d 726, 995 NYS2d 735 12d Dept 2014]; Deutsclte Ba11k Natl. Trust Co. v Islar, 122 A03d 566, 996 NYS2d 130 [2d Dept 2013 j ; M id.first Bank vAglto, 121AD3d343, 991NYS2d623 [2d Dcpt2014l; Bank ofNew York v M ulliga11, l l 9AD3d 716, 989 NYS2d 295 [2d Dept 2014J; Pfoza Equities, LLC v Lamberti, 118 AD3d 688, 986 NYS2d 843 (2d Dept 2014]; Wells Fargo Bank, N.A. v Gioia, 114 AD3d 766, 980 NYS2d 535 (2d Dept 20141; Citimortgage, /11c. v Fl'iedman, l 09 AD3d 573, 970 NYS2d 706 [2d Dept 20131). Instead, a standing challenge is merely an affirmative defense that is waived unless it is asserted in a timely preanswer motion to dismiss or in a timely served answer (see JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821, supra; U.S. Bank Natl. Ass'll v Denaro, 98 AD3d 964, supra; Capital One, N.A . v Knollwood Prop. 11, LLC, 98 /\D3d 707, supra; Countrywide Home Loans, Ille. v Delpltonse, 64 AD3d 624, supra; Wells Fargo Bank M inn., N.A. v Mastropaolo, 42 AD3d 239, supra). Accordingly, a foreclosing plaintiff must provide evidence of its standing in moving for accelerated judgments or at the trial of the action only in those cases wherein the plaintiff is not the original lender and standing has been placed in issue by a defendant's timely assertion of that defense in his or her answer (see Wells Fargo Bank, N.A. v A li, 122 AD3 d 726, supra; M id.first Bank v Aglw, 121 AD3d 343, supra). Here, defendant Samuels waived the defense of standing by her failure to assert it in either a preanswer motion to dismiss or timely served answer. The demands for dismissal of the complaint due to a purported lack of standing on the part of the plaintiff are rejected as wholly lacking and merit. Defendant Samuels' claims that the complaint should be dismissed or the plaintiffs motion denied because she failed to understand the nature and import of her failure to answer the complaint and that she relied upon a free legal services firm and the statements of the plaintiff or its agents are wholly unavailing. It is well settled that ignorance of or confusion about legal processes do not constitute a defense to a claim for foreclosure and sale (see Wells Fargo Bank, NA v Besemer, 131 AD3d 104 7, 16 NYS2d 819 [2d Dept 20 15]; Chase Home Fin., LLC v M inott, 115 AD3d 634, 981 NYS2d 757 l.2d Dept 20141; HSBC Bank USA, N.A . v La.fi1za11, 115 AD3d 647, 983 NYS2d 32 [2d Dept 2014]; U.S. Btmk N.A. vS/avinski, 78 AD3d 1167, 912 NYS2d 285 [2d Dept 2010]). In addition, defendant Samuels does not deny receipt of the summons personally delivered to her with the notices required by RP APL 1303 and 1320 warning her that she should "fslpeak to an attorney or go to the court," and that she "must respond by serving a copy of the answer" or risk the loss of her home (see Cltase Home Fin., LLC v Millott, 115 /\D3d 634, supra; see also Emigra11t Bank v Wiseman, 127 AD3d 1013, 6 NYS3d 670 [2d Dept 2015]; HSBC Bank USA, Natl. Ass'n v Rotimi, 115 AD3d 634, 981 NYS2d 757 [2d Dept 2015 J). Defendant Samuel's further claim that the complaint is subject to dismissal or that the plain Li ff' s motion should be denied because the plaintiff has not negotiated, in good faith, a loan modification or other resolution of the claims advanced in the complaint is rejected as lacking in meril. It is now clear that a lender is not required to modify a loan at a CPLR 3408 conference but instead, is only required to negotiate in good faith (see Flagstar Ballk, FSB v Walker 112 AD3d 885, 977 NYS2d 35912d Dept 20131; Wells Fargo Bank, N.A. v Meyers, 108 AD3d 9, 23, supra] ["it is obvious that the parties cannot he forced 10 reach an agreement, CPLR 3-108 does not pwport to require !hem to, and Lhe court.\· may not endeavor to force an agreement upon the parties"J; see also Wells Fargo Bank, N.A. v Van Dyke, I01 AD3d 638, supra). Moreover, "fn]othing in CPLR 3408 requires plaintiff to make the exact offer clesi red by [the] defendant[], and [the] plaintiffs fai Iure to make that offer cannot be interpreted as a lack of good fai th" (Bank ofAmerica, Natl. Ass 'n v Lucido, 114 AD3d 714, 98 1 NYS2d 433 i2d Dept 2014], [* 6] US Bank v Samuels et al Index No. 15313/13 Page 6 c1uo1ing Wells Fargo Bank, N.A. v Van Dyke, 101AD3d638, 638, supra; see also PHII Mtge. Corp. v Hepburn , 128 AD3d 659, 10 NYS3d 102 l2d Dept 20 15]). The reason underlying the forgoing rules are derived from well established principles of contract law which have long provided that this court nor any others may not direct a party to a contract to rewrite it or to enter into new terms or other agreements, since such a direction would clearly violate the Contract Clause of the United States Constitution (see Wells Fargo Bank, N.A. v Meyers, l 08 AD3d 9, supra; see also PHH Mtge. Corp. v Hepburn, 128 AD3d 659, supra; Citibank, N.A. v Barclay, 124 AD3d 174, 999 NYS2d 375 [1st Dept 20141; Flagstar Bank, FSB v Walker, 112 AD3d 885, supra; Wells Fargo Bank, N.A. v Van Dyke, 101 J\D3d 638, supra]). There is thus no duty on the part ofa lender or its successorin-interest to modify the terms of a loan. Instead, there is a statutorily imposed duty upon the plaintiff and the borrower in mo1igage foreclosure actions to engage in good fai th negotiations to resolve the claim by a settlement that is aimed at keeping the borrower in his or her home, if possible (see CPLR 3408; U.S. Ba11k, N.A. v Sarmie11to, 121 AD3d 187, 991NYS2d68 [2d Dept. 2014]; Bank ofNew York v Castillo, 120 AD3d 598, 991 NYS2d 446 [2d Dept 20141; Flagstar Bank, FSB v Titus, 120 AD3d 469, 991 NYS2d 110 [2d Dept 2014]). Even if bad faith on the part of a foreclosing plaintiff has been established, which is not the case here, such bad faith does not give rise to a defense to the foreclosure action or other ·'basis for preventing the plaintiff from enforcing the terms of its mortgage" (Citibank, N.A. v Van Brunt Props., LLC, 95 /\D3d 1158, 1159, 945 NYS2d 330 [2d Dept 2012]; see also Indymac Bank, F.S.B. v Yano-Horoski, 78 AD3d 895, 912 NYS2d 239 [2d Dept 2010]). Instead, it constitutes conduct for which the court may impose some form of sanction (see Wells Fargo Bank, N.A. v Meyers, 108 AD3d 9, supra), including a toll on interest otherwise collectable by the plaintiff under the terms of the loan documents (see U.S. Bank Natl. Ass'n v Smith, 123 AD3d 914, 999 NYS2d 468 1_2d Dept 2014]). The remaining contentions of defense counsel arc likewise devoid of merit, including the claim that the plaintiff is not entitled to an order confirming the repo1i of the referee to compute due to purported omissions and defalcations on his part (see LBV Prop. v Greenport Dev. Co., 188 /\D2d 588, 591 NYS2d 70 [2d Dept 1992]; Capital One, N.A. v Knollwood Prop. II, LLC, 98 AD3cl 7077, supra]; Blueberry Inv. Co. v Ilana Real(•', 184 AD2d 906, 585 NYS2d 564 [2d Dept 19921; see also Deutsc/1e Bank Natl. Trust Co. v Zlotoff, 77 AD3d 702, 908 NYS2d 612 [2d Dept 2010]; Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282, 850 NYS2d 219 [3d Dept 2007]; Federal Deposit Ins. Corp. v 65 Lenox Rd. Owners Corp., 270 AD2d 303, 704 NYS2d 613[2d Dept 2000]; Adelman v Fremd, 234 AD2d 488, 65 1NYS2d 604 [2d Dept 1996]; One West Bank v Rojas, 46 Misc3d 1228[A J, 9 NYS3d 594 fSup. Ct. Suffolk County 2015]). Defendant Samuels admitted that she defaulted in her payment obligations under the terms of the note and mortgage and she has not contested the calculations set forth in the report of the referee to compute. Defense counsel's complaints about the purported untimeliness of the motion to confirm arc rejected as the fail ure to comply therewith are mere irregularities. /\.11 remaining demands for a denial of the plaintiff's motion that are advanced in the cross moving papers of defendant Samuels, including the reply papers, arc rejected as lacking in merit. The challenges to the plaintiffs proof and purported dcfonses asserted in the opposing papers were either waived by the defendant's failure to appear in this action by answer (see Mortgage Elec. Registration Sys., Inc. v Holmes, 131AD3d680, 2015 WL 5023782 [2d Dept 2015]; Bayview Loan Serv. LLC v [* 7] US Bank v Samuels ct al Index No. I 53 13/13 Page 7 Bernard, 130 AD3d 850, 12 NYS2d 894 pd Dept 2015]; Wells Fargo Bank, N.A. v Laviolette, 128 e AD3d 1054, supra) or are unavailable due to the defendant' s failure to establish grounds to vacat, his default (see PHH Mtge. Corp. v Celestin, 130 AD3d 703, supra). Defense counsel ' s belated request advanced in his reply anirmation that the court consider the cross motion as one seeking to vacate the defendant' s default in answering, notwithstanding that such relief was not noticed in the cross moving papers, is rejected on procedural grounds since this request constitutes new matter asserted first in reply papers and thus may not considered by the court (see Mauri~clzat v County ofNass{1u, 81 J\.D3d 793, 916 NYS2d 235 [2d Dept 2011]). In addition, the prior adjudication of the defendant's default contained in the order issued on October 23, 2014 on the plaintiffs prior motion for default judgments and the appointment of a referee to compute precludes the court from entertaining defense counsel's request to treat the cross motion as one for a vacatur of defendant Samuel's default in answering. Relief from that October 23, 2014 order is available only on a motion made pursuant to CPLR 5015(a)(l-5) which requires its interposition by Order to Show Cause so that the court may direct the method and manner of notice to be given as mandated by CPLR 50515(a) (cf, CPLR 3012[d); Fried v Jacob Holding, Inc., 110 /\D3d 56, 66, 970 NYS2d 260 [2d Dept 2013 ]). In any event, no reasonable excuse for the default in answering or in opposing the plaintiff's prior motion on the part of defendant Samuels was put before the court in her submissions which is a requirement for the granting of a discretionary vacatur under CPLR 50 l 5(a)(l) (see Citibank, N.A. v Boyce, 131 AD3d 439, 13 NYS3d 911 (2d Dept 2015]; Wells Fargo v Besemer, 131J\.D3d1047, 16 NYS3d 819 [2dDept 2015]; We/Js Fargo Bank, N.A. v Mazzara, 124 AD3 d 875, 875, 2 NYS3d 553 l2d Dept 2015]). The plaintiffs motion (#002) for confirmation of the report of the referee to compute and for the issuance of a judgment of foreclosure and sale is granted. The moving papers sufficiently demonstrated the plaintiffs entitlement to such relief while the submissions ofthe defendant Samuels failed to establish any grounds for a denial of the plaintiff's demands for relief. Accordingly the plaintiffs motion (#002) is in all respects granted. Proposed Judgment of Foreclosure and Sale, as modified by the court to reflect the issuance of this memo decision and order, is signed simultaneously herewith. DATED:~

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