Aurora Loan Servs. LLC v Scheller

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Aurora Loan Servs. LLC v Scheller 2016 NY Slip Op 32539(U) November 21, 2016 Supreme Court, Suffolk County Docket Number: 22839-2009 Judge: C. Randall Hinrichs 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] SHORT FORM ORDER INDEX NO. 22839-2009 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 49 SUFFOLK COUNTY PRESENT: HON. C. RANDALL HINRICHS Justice of the Supreme Court Motion Date: 004: 8-20-2015 I 005: 10/22/2015 Adjourned Date: 2-17-2016 Motion Sequence.: 004: MD I 005: MotD ---------------------------------------------------------)( AURORA LOAN SERVICES LLC and NATIONSTAR MORTGAGE LLC, Plaintiff, -againstMANFRED SCHELLER, CHERYL MENDENHALL, ET AL., Akerman LLP By Erica R. Stein, Esq. Attorneys for Plaintiff 666 Fifth Avenue - 201h Floor N ew York, NY 10103 Charles Wallsbein, Esq. By Claire Talwar, Esq. Attorney for Defendants Scheller & Mendenhall I 15 Broadhollow Road, Suite 350 Melville, NY 11 747 Defendants. -----------~----------------------------------~~------)( Upon the reading and filing of the following papers in this matter: (l) Notice of Motion by the defendants dated July 21, 2015, and supporting papers; (2) Affirmation in Opposition of plaintiff dated August 13, 2015, and supporting papers; (3) Notice of Motion by the plaintiff dated October 7. 2015, and supporting papers; (inclucling Memorandum of Law); ( 4) Affirmation in Opposition by the defendant, dated January 18, 2016 (inadvertently reflected as January 18, 2015), and supporting papers; and (5) Affinnation in further support of motion by the plaintiff, dated March 8, 2016. and supporting papers (including Memorandum of Law); it is ORDERED that the motion (#004) by the defendants, Scheller and Mendenhall, for an order compelling discovery or an order imposing sanctions upon the plaintiff for failing to respond to the defendants' discovery demands is denied; and it is further ORDERED that those portions of the separate motion (#005) by the joint plaintiffs for a substitution of Aurora Loan Servicing, LLC, by Nationstar Mortgage, LLC, are considered under CPLR 1018 and l 003 and are granted to the extent that the court, pursuant to CPLR 1003, drops Aurora Loan Servicing, LLC, as a party plaintiff to this action, thereby leaving Nationstar Mortgage, LLC, as the sole plaintiff and it directs that the caption be amended to reflect this change; and it is further ORDERED that those portions of the motion (#005) by the plaintiffs for an order discontinuing the 2009 action commenced by Aurora Loan Services, LLC, which has been merged by ~onsolidation into the subsequently commenced 2013 action by Nationstar Mortgage, LLC, are granted only to extent that the 2009 complaint is deemed withdrawn and thus dismissed as academic; and it is further ORDERED that those portions of the plaintiffs' motion in which Nationstar seeks summary judgment dismissing the affirmative defenses and counterclaims asserted in the amended answers of the mortgagor defendants and for an award of summary j udgment on the complaints is consiaered. under CPLR 3212 and RPAPL § 1321 and are granted as to the 2013 complaint against said defendants; and it is further · [* 2] ORDERED that rhosc portions of the plaintiff'>' motion wherein Nationstar seeks default judgments o~ it~ 2013 c~m1plaint against the remaining defendants who were served with process and an order appomtmg a re1eree to compute are considered under CPLR 32 I 5 and R PA PI , § 1321 and arc granted only as to the 2013 complaint. ' The procedural caste of this consolidated mortgage foreclosure action as it now pends before this court is more than unusual. First filed was a an action bearing Index No. 22389/2009 ,by Aurora Loan Servicers. LLC.. to foreclose an April 28. 2006 mortgage in the amount of $999.999.00 given by the Scheller/ Mendenhall defendants to Lehman Brothers Ban~ FSB. to secure a mortgage note of that date which was likewise given. The plaintiff. Aurora Loan Servicing, LLC [hereinafte; ,.:-Aurora··1. claimed ownership of the note and rno1tgage under a .June 8, 2009 written assignment of said note and mortgage by a nominee [MERS) of the original lender that was duly recorded in the office of the Suffolk County Clerk on July 28. 2009. None of the defendants served with process appeared by answer or by motion in response to the plaintiffs service of the summons and complaint. A settlement conference of the type contemplatec.l by CPLR 3408 was initially scheduled for July 16, 2010 and held on August 16, 20 I 0 by quasi-judicial personnel assigned to the specialized mortgage foreclosure conference part of this coun. Defendant. Manfred Scheller, participated in said conference personally, or by counsel. the Lan in Law P.C.. who riled a notice of appearance for said defendant on August 16. 2010. That conference culminated in a marking of the action '"not eligible'' for the conference due to the nature and size of the loan and the fact that the mortgaged premises were not the homes or residences of the bonowcr defendants. The action was immediately released from the conference part and assigned to the civil case inventory of Part 2 1. A motion returnable on June 10, 2010 by plaintiff Aurora for the appointment of referee on the default of all defendants pursuant to RP APL§ 132 l was held in abeyance pending release of the matter from the conference part and was marked submitted on August 25, 20 I 0. Said motion was denied, without prejudice. by order dated April 4. 201 1 due to the pJaintiffs purported failure to cmnply with certain administrati vely imposed vouchi ng requirements. The action lay dormant until March 8. 2012 when defendant Scheller. represented by new counsel. and defendant Mendenhall,jointly served an ··amended answer'' to the complaint. The plaintiff. without objection. served a reply to the counterclaims advanced in that answer. In June of 2012. defendant. Cheryl \1endenhalL filed a petition in bankruptcy and the action was marked stayed on August 3. 2011. Defendant Mendenhall obtained a dischl:lrge in October of2012 and the case was closed in Decemher of 2012. The auto1natic stay of the 2009 action was marked lifted in January of2014 upon the interposition a motion hy defendanL Manfred Scheller, described below, and a series of conferences began which continued until October 22. 2015. or Meanwhile. a separate action to foreclose the lien of the same mortgage that wa.s the subject of the pending 100<> foreclosure action was commenced on July 11. 2013 by Nationstar Mortgage. LLC, under lndex Number 061765/2013. Therein. the plaintiff Nationstar claimed an ownership interest in the note and mortgage due to its possession a duly indorsed note on the date of filing. In response to the plainliff s service of the summons, complaint and other initiatory papers. only defendant. Manfred Scheller, appeared by answer dated July 12. 2013. /\reply to the four counterclaims set forth in said answer WHS served by the plaintlfT, Natio11star. Four settlement conferences were conducted pursuant to C'PLR 3408 without :-;uccess. or As indicated above. in .January of 2014. defendant Sc~heller moved (#002). hy Order to Show Cause on papers hearing the Index No. of the prior 2009 action, for an order compelling acceptance of -2- [* 3] a s:cond amende~ answer t~ tl~~-com~laint served in that action and for an order consolidating the two actions. _Counsel tor th~ plamt1 tt, Na!1onstar, -~ho had been substituted for Aurora's counsel in August of2013 m the_ 2(~09 action. appeared m oppos1t1on by cross moving papers (#003). in which. Nationstar, as successor-111-mtcrest to Aurora. sought an order dismissing or discontinuing the 2009 action. 8)'. order dated May 22. 2014. the court granled the defendant's motion and denied the plaintiff's cross motion. An amended answer dated January 27. 2014 in the 2009 action was attached to the moving papers and served in .June of2014. to which the plaintiff<>, Aurora and Nationstar, jointly served amend counterclaim replies in February of 2015. 1 The court went on to direct a true coi1solidation of the actions under Index No. 22839/2009 and amended the caption fo r all futurc proceedings to b~ titled as follows: A 11rora Loan Services. J,f.,(' and Nalionstar Mortgage. J,L(', />laintiff.'i. ,. Mw1fred Scheller. Che1yl Mendenhall. et. al. Notwithstanding the forgoing directives. both defendan ts. Scheller and Mendenhall, sought by motion (#004) with separate double captions returnable on August 20, 2015, an order compelling the plaintiff to furnish responses to their outstanding discovery demands and to produce certain custodial agreements referred to in a servicing agreernent covering the defendants· mortgage Joan. While there is some evidence thar this motion may have hecn decided at conferences by the court previously presiding over thi::; action, no writing that conforms to the requirements of CPLR 2219 hac; been put before this court. Accordingly, this court, having read and considered the defendants' submissions in support of their application and the opposing papers of the plaintiff, hereby finds thal this motion (#004) was rendered academic by the plaintiffs service of adequate responses (see PNC Bank, Natl. Ass'n v Campbell, 142 AD3d 1 l.f8. 38 NYS3d 236 j2d Dept 2016]: Palmieri v Pia110 Excha11ge, / 11c., 124 AD3d 611, 1NYS3d315 [2d Dept 2015]) and that outstanding materials. if any. are neither relevant nor material to the defense or prosecution of the claims interposed in this consolidated forec losure action (see Well~· Fargo Bank v Cita ria.ff 134 A03d I 099, 24 NYS3d. 317 f2d Dept 20 l SJ Ba11k ofA merica Natl. Ass'n v Patino, 128 AD3d 994, 9 NYS3d 656 [2d Dept 20151; U. S. Bank Nat. Ass 'n v Camivale, 138 AD3d 1220, 29 NYS3d 643 [3d Dept 2016 j~ Rajami11 v Deutsche Bank Natl. Trus t Co.. 757 F.3d 79, 87 l2d Cir.2014J; see als0Alto11e11 v Kmart ofN. Y. Holdi11gs, J11c., 94 J\D3d 920, 942 NYS2d 363 l 2d Dept 2012]). In view of the foregoing, the motion (#004) by the defendants for an order compelling the production of documents and other disclosure material is denied. Left for consideration is the motion by the plaintiffs, Aurora and Nationstar. for summary judgment dismissing all affim1ative defenses asserted in Lhe answers served by the borrower defendants and for summary judgment on the complaints served and filed herein. The plaintiffs further seek to substitute Nationstar as the plaintiff on the 2009 complaint into which. the 2013 action was consolidated and for a discontinuance of the 2009 action. The motion is opposed in an affirmation ofdefense counsel who contends as fol lows: that the plainli ffs · proofs are insufficient to establish the plaintiffa compliance with the contractual notice of default requirements. the defendants· default in payment and the standing of plainti ff.<:> to prosecute their claims. Defense counsel next contends that the defendants' standing defenses are meritorious and wanant a finding that both plaintiffs lack standing to prosecute their claims for foreclosure and sale. Finally, defense counsel contends that the motion is premature due to outstanding discovery. The plaintiff served reply papers and the motion was marked submitted in 1 An identical Mswer bearing t11c Index number of the 2013 action also dated January 27. 2014 was prepared by the defendants' attorney and it has been put before the court as an attachment to the defendants· opposing papers. -3- [* 4] January of 2016 following the transfer of the action to this court. The plaintiffs' demands for an order substituting Nationstar Mortgage, LLC for Aurora Loan Servicing, LLC. is granted to the extent that the court, pursuant to CPLR 1003, hereby drops Aurora Loan Servicing, LLC, as a party plaintiffthereby leaving Nationstar Mortgage, LLC, as the sole plaintiff. This application was not opposed by the answering defendants. There was thus no rebuttal of the plaintiffs ' claims thac Aurora no longer has any interest in the 111011gage debt as recited in the loan documents. ln addition, the relief granted w ill bring some degree of clarity to this unduly complex and protracted consolidated action. ll1e caprion of this action is t hus amended to delete Aurora as a party plaintiff and all future proceedings shall be captioned accordingly. The plaintiffa' alternate request for a dis1nissal of the 2009 action is also not opposed hy the defendants and it is granted to the extent that the 2009 complaint is deemed withdrawn and thus dismissed as academic. or The remaining portions the plaintiffs' motion (#005) for accelerated judgments on their complaints are denied as academic with respect to Aurora's 2009 complaint and the defendants· amended answer thereto. as all things asserted in such answer are contained in the amended answer served in response to the 2013 complaint. However, the court grants the request for summary judgment on the 20 I 3· complaint and an award of summary judgment dismissing the affirmative defenses and counterclaims advanced in the answer served in response thereto. The court further grants the request for defaultjudgments based upon the defaults in answering of all other defendants joined by service of process in the 20 I 3 action. Also granted is the application in the 2013 action for the appointment of a referee to compute amounts d ue under the tcnns of the note and mortgage. lt is well settled that a foreclosing plaintiff establishes its prima facie entitlement to judgment as a matter of law hy producing the tTiortgage and the unpaid note and evidence of a default under the terms thereof(see Wells Fargo Bank, N.A. v Eroboho. 127 ADJd 1176, 9 NYS2d 3 I 2 f2d Dept 2015]: Wells Fargo Bank, N.A. v Desouza, 126 AD3d 965. 3 NYS2d 619 l2d Dept 2015]~ OneWest Ba11k, FSB v DiPilato, 124 AD3d 735, 998 NYS2d 668 j2d Dept 2015 I: Well~ Fargo Bank, N.A . v Ali, 122 AD3d 726. 995 NYS2d 735 Pd Dept 20141). Where the plai ntiffs standing has been placed in issue by the dcl~ndant's answer. the plaintiff also must establish its standing as part of its prima facic showing (see A urora Loan Servs., LLC v Tay lor, 25 NY3d 355, l 2 NYS3d 612 r2o I 5): Loa11care v Firshi11g, 130 AD.1d 787, 2015 WL 4256095 f2d Dept 20151: HSBC Bank USA, N.A . v Baptiste. 128 AD3d 77, I 0 NYS3d 255 [2d Dept 2015]). Finally. a plaintiff seeking summary judgment should establish that none of the affirmative defenses asserted in the answer <.)r by any defendant have merit (see Citimortgage, Inc. v Chow Millg T1111g, 126 AD3d 84 l . 7 NYSJd 147 [2d Dept 2015 J; Central Mtge. Co. v McClelland. l 19 AD3d 885. 99 I NYS2d 87 f2d Dept 2014J; Bank of New York v McCall, I 16 AD3d 993, 985 NYS2d 255 I2d Dept 2014 J~ Fairmollt CapUal. LLC v Laniado, 1 I 6 AD3d 998, 985 NYS2d 254 [2d Dept 20141; Mendell Group, Inc. 11 Prince, 114 AD3d 732, 980 NYS2d 519 f2d Dept 2014]: Beclter v Fe/Jer. 64 A03d 672, 884 NYS2d 83 f2d Dept 2009)). Where these matters are established, it becomes incumhent upon the answering defendant to submit proof sufficient to raise a genuine question of fact rebutting the plaintiffs prima facic showing or in support of the affirmative defenses asserted in the answer or otherwise available lo the defendant (see Jessabell Realty C01p. v Gonzalez 117 AD3d 908, 985 NYS2d 897 f2d Dept 2014)~ R edrock Kings. LLCv Kings Hotel, In c.. 1091\DJ<l 602, 970 NYS2d 804 l2d Dept 2013J; Flagstnr Bank v Bellafiore, 94 ADJd I 044. 943 IYS2d 551 l.2d Dept 20 I 2J; Grogg Assocs. v South Rd. Assocs., 74 AD3d I 021, 907 NYS2d 22 I 2d Dept 20 l Ol: Well<> Fargo Brmk v Karl<I, 71 AD3d 1006, 896 NYS2d 68 l f2d Dept 20 I 01). ff a defendant fails to oppose some or all matters advanced on a motion for summary judgment. tl1e facts as alleged in the movants' papers may be deemed admitted as there is. in effect. a concession that no question of fact exists (see Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539, 369 NYS2d 667 f I 97:' ]: see ol.M M<Ideli11e D 'A ntlwny E111er., /11 c. v Sokolowsky . l 01 AD3d 606, 957 NYS2d 88j1 st Dept 2012]: A rgent Mtge. Co., LLC v Mentesana . 79 AD3d I 079. 915 NYS2d 591 Pd -4- [* 5] Dept 2010j). ln addition, the failure to raise pleaded affi rmative defenses in opposition to a motion for summary judgment renders those defenses waived due to abandonment (see New York Commercial Bank v J. Realty F R ockaway . Ltd.. l 08 AD3d 756. 969 NYS2d 796 !2d Dept 2013 j; Starkma11 v City of Long Beach . 106 !\D3c.I 1076. 965 YS2d 609 f2d Dept 2013)). Here, the moving papers established, prima facie. that none of the affirmative defenses asserted in the amended answer dated January 27, 2014 purportedly served in response to the Nationstar's 2013 complaint by the defendants are meritorious. Most of the nineteen pleaded affirmative defenses asserted therein were waived and abandoned by the defendants' [ai lure to assert them in opposition to the plaintiffs ' joint motion. Those that were not, arc the Second Affirmative defense. which sounds in culpable conduct on the part of the plaintiffNationstar; the Fifth affim1ative defense which charges that plaintiff with non-compliance with a contractual condition p recedent~ and the Eleventh through Fifteenth and the Nineteenth Affirmative defonses all of which challenge the standing ofNationstar to prosecute its claims for foreclosure and sale. !\ccordingly, the First, Third, Fouiih. Sixth. Seventh, Eighth, Ninth, Tenth, Sixteenth. Seventeenth and Eighteenth affirmative defenses contained in the January 27, 2014 answer are dismissed pursuant to CPLR 32 I 2(b). The lack of merit in the defendants' Second affirmative defense alleging '·culpable conduce on the part of the plain ti ff is rcadi ly apparent. Defenses premised upon the ·'culpable conduct'' of a p laintiff are generally creatures of the law of torts which has no application to th.is foreclosure action. T is well t settled that a mortgage foreclosure action is" contractually based, equitable action, in rem. Therein. the plaintiff seeks, by the foreclosure of the mortgage lien, to collect the cormactual mortgage debt. not from the mortgagor directly. but from the land that the rno11gagor posted as security for the debt (see Jo A im Homes v Dworetz. 25NY2dI12, 302 NYS2d 799 tJ 969J). 2 However. the equitable attributes of a foreclosw-e action do not remove it from its governance by the contractual law of New York and by the Contra.ct Clause of the United States Constitution (see Wells Fargo Bank, N.A. v Meyers, 108 AD3d 9, 966 NYS1d 108 [2d Dept.2013 j: see also PHH Mtge. Corp. v Hepburn, 128 AD3d 659, 1ONYS3d 102 l2d Dept 2015J ~ Citibank, N.A. v Barclay. 124 AD3d 174, 999 NYS2d 37511 st Dept 2014]). The Second affirmative defense of asserting culpable conduct on the part of the plaintiff is thus no defense at all to the claim for foreclosure and sale. /\ccordingly, it is dismissed pursuant to CPLR 32 I 2(b). The lack of merit in the Fifth affirmative defense, which sounds in the plaintiffs purported failure to comply w ith the contractual default notice requirements. is also apparent since there is no denial of receipt of this notice by either of the answering defendants (see Flagstar Bank, FSB v Mendoza. 139 AD3d 898, 32 NYS3d 278 l2d Dept 2016 j). Defense counsel thus challenges the quality of the plaintiffs proof with respect the issue of compliance. A similar claim as to a failure of proof is 1ed standi ng defense. which is advanced in the posited by defense counsel with respect to the asse1 Eleventh through fifteenth and the Nineteenth Affirmative defenses set forth in the defendants' answer to the 2013 complaint. Defense counsel fu11her contends that the plaintiffs submissions are insufficient to establish a default in payment which occurred as alleged in the complaints served and filed herein. The court. however, rejects these contentions. A business record will be admissible if that record ''was made ir. the regular course of any 1 In some cases. the action becomes in pcrsonarn in nature as to some defendants as it may allow the plaintiff to collecr the debt from those personally ohligated to pay under the tenns oftht: note or bond which the mortgage was given to secure. However, the judicially directed sale must bring insufficient proceeds co satisfy rhc debt and the court must have in personam jurisdiction over said the targeted ohligors (SC'<' RPA PT § 1371 ). -5- [* 6] business and ... it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event. or within a reasonable time thereafter'" (One Step Up , Ltd. v Webster Bus. Credit Corp., 87 AD3d I. 925 NYS2d 61 11 st Dept 20 1 I l; CPLR 4518[al). While "the mere filing of papers received from other entities is insufficient to qualify the documents as business records, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures, or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business" (Deutsche B a11k N atl. Trust Co. v Mollica, 131 AD3d 73 7, 15 NYS3d 863 [Jd Dept 20151 [emphasis added]; quoting State v J58t/1 S t. & Riverside Dr. Hous. Co., In c .. I 00 AD3d 1293. 956 NYS2d 196 f3d Dept 2012] citing People v Cratsley, 86 NY2d 81, 90- 91. 629 NYS2d 992 [l 9951). Appellate case authorities have thus held that a loan servicer may testify as to payment defaults, notice compliance. standing and other matters relevant to a foreclosing plaintiffs prima facie case, by relying upon records it maintains in the regular course of its busi ness as servicer of the subject mortgage loan (see US Bank N.A . v Ehrenfeld, 2016 NY Slip Op 07639 [2d Dept2016]; Pemzymac Holdings, LLC '' Tomanelli, 139 AD3d 688. 32 NYS3d 181 f2d Dept 2016]; Deutsche Bank N atl. Trust Co. v N aughton , 137 AD3d 1199, 28 NYS3d 444 f2d Dept 20161; De utsche Bank Natl. Trust Co. vA bdan, 13 J ADJd I 00 I. 16 NYS2d 459 l2d Dept 2015J; Wells F argo Rank, N.A . v A rias, 121 AD 3d 973, 995 NYS2d 118 f2d Dept 20 14]; see also Deutsche Ba11k Natl. Trust Co. v A1011ica , 131 AD3d 737, supra; HSB C Ba11k USA, N atl. Ass'n v S age, 112 AD3d 1126. 977 NYS2d 446 [3d Dept 20 13L A ames Capital Corp. v Ford. 294 AD2d 134. 740 NYS2d 880 [I st Dept 20021). It is also established law that an assignee or other transferee tht: loan documents may rely upon the business records of the loan originator or other predecessors in interest to establish such transferee's claims for recovery of amounts due from the debtor so long as it establishes that it relied upon those records in the regu lar course of its business (see Lan dmark Capital In v., Inc. v Li-Shan Wang, 94 AD3d 4 18, 94 1 NYS2d 144 [1st Dept 20 12]; see also Porifolio R ecovery Assoc., LLC v Lall, 127 ADJd 576, 8 NYSJd 101 [1st Dept2015]). finally, proof of the mailing of statutory or contractual notices may he estab lished hy either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Nassau Insurance Co. v Murray, 46 NY2d 828, 414 NYS2d 117 [ 1978]; Flagstar Bank v Mendoza, 139 AD3d 898, 32 NYS3d 278 I2d Dept 2016): Vivilme Etienne Medical Care, P. C. v Country -Wide I11s. Co.. 114 AD3d 33, 977 NYS2d 292 r2d Dept 2013], a.ff'd. 25 NY3d 498, 14 NYS3d 283(2015 j; R esidential Holding Corp. v S cott(idale 111.s. Co., 286 AD.2 679, 680. 729 NYS2d 776 l2d Dept 200 \ j). or This court's review of the affidavits submitted in support of the motion. which include the affidavits of employees of both. Aurora Loan Servicer. LLC and ofNationstar Mo1tgage, LLC, reveal that they confom1 to the requi rements of CPLR 4518(a) (see Pen11y mac Holdings, LLC v Toma11elli, 139 AD'.ld 688. supra~ D eutsche Ba11k N atl. Trust Co. ,, M o11ica. 131 AD3d 737. supra). All of the defonse counsel's challenges lo the character and quality of the affidavits of mer it. particularly, the Nationstar affidavit arc rejected as unmeritorious. Morever, upon a review of the substantive contents of such affidavits, the court finds t hat Nationstar's affiant sufficiently dem0ns1rated the plaintiffs compliance with the mailing of the RPAPL § 1304 default notices to the defendants, which they do not cha! lenge, by due proof of standard business practices employed in the mailings of such notices which :-.'l1fficcs to satisfy the contractual default notice requirements (.<>ee Wachovia Ba1tk, JV.A. v Carca110, 106 AD3d 724, 725. 965 NYS2d 5 16 [2d Dept 2013]). In addition. the Nationstar affidavit sufficiently established the default in payment by the defendants on June J, 2009, wh ich is consistent with the allegations of default set forth in both ADJd _ , 2016 WL6089224 l2d Dept 20161; complaints (see Emig ra11t Bank v Marando, _ Pe11nymac Holdings. L L C v Tomanelli, 139 AD3d 688, supra). -6- [* 7] The court further finds that the Nationstar affidavi t of m erit established by due proof that Nationstar had constructive possession of the mortgage note on July 1. 20 J 2 when it acquired ownership of the records facil ity in Nebra<;ka that was formerly owned by Aurora and that Nationstar had physical possession of the note on May 15. 2013, which was several weeks prior to the commencement of this action in Ju ly of 20 13. Under current appellate case authorities, there are several ways a foreclosing plaintiff may establish its standing. One is by due proof that the plaintiff was in possession of the note on a day certain prior to the commencement of the action (sec A urora Loan S ervs., LLC l ' Tay lor, 25 NY3d 355, 12 NYS3d 612 [2015 J~ JPMorgan Chase Bank, N atl. A ss'n v Wei11herger. 142 AD3d 643. 37 NYS3d 286 [2d Dept 2016L Citimortgage, Inc. v Klein, 140 A03d 913, 33 NYS3d 432 l2d Dept 20 1 6j~ U.S. Bank N atl. Ass'11 v God win, 137 AD3d 1260. 28 NYS3d 4 50 f2d Dcpl 20 16]: Well F argo Bank, N.A. v Josepli. 137 AJ)3d 896. 26NYS3d12d Dept2016j; E migrant Ba11A v Lariz.za, 129 AD3d 904, 13 NYS3d 129 l 2d Dept 20151). Where a pre-commencement note possession date is established by the plaintiff, it is unnecessary to give factual details of lhc note·s delivery in order to establish that possession was obtained prior to the commencement of the action on a particular date (see JPMorgan Cltase Ba11k, Nat. A ss'11 v Weinberger, 142 AD3d 643 . supra). Indeed. the establishment the plaintiffs possession ofthe mortgage note on a date prior to the commencement of the action is so conclusive that it renders, unavailing, all claims of defects in allonges (see U.S. Bank v A sk ew. I38 AD3d 402, 27 NYS3d 856 f Ist Dept 20 161) and claims of defects in the chain of mo1 tgage assignments (see Deutsche Bank Natio11a/ Trust v Naugltto11, 137 AD3d 1199, supra: Deutsche Bank Nat. Trust v Wltalell, 107 AD3d 93 J, 969 NYS2d 82 l2d Dept 20 J3 J) Moreover. the p laintiffs pre-commencement possession of a note indorsed in blank defeats the claim that the plaintiff lacks '\tand ing hecause Freddy Mac is the owner by purchase of hencficial interests in the note (sec Wells Fargo Bank, N.A. v Ostig uy, 127 AD3d l 3 75, 8 NYS3d 669 f2d Dept 20l5j). Measured by the forgo ing standard. the court finds that Nationstar adduced due and sufficient proof of its stand ing by the affidavit of its employee which was sufficient to establish that the plaintiff had physical possession of the subject note. indorsed in blank, on a date prior to lhe commencement of the action. The defendants· claims lhat Nationstar's proof was insufficient to establish its s tanding are thus rejected as lacking in merit as arc defense counsel's claims that the affirmative defense of stand ing remains a substantively viable defense to the plaintiff's claims for foreclosure and sale (see e.g, A umra loan S ervs., L LC 11 Taylor, 25 NY3d 355. supra; .JPMorgan Chase Bank, Natl. Ass'n v Weinberger, 142 AD3d 643 . supra: U.S. Bank, N.A., v A skew, 138 AD3d 402, supra; Deutsche Bank Natl. Trust Co. v Naugltton , 137 AD3d l 199: supra: Wells Fargo Bank, N.A. v Ostiguy. 127 AD3d 1375. supra~ Wells Fargo Bank, N.A. v. Burke, 52 Misc. 994, 34 NYS3d 865 fSup. Ct. Suffolk County 2016 J). Accordingly dismissal of the EleYcnth through fifteenth and the Nineteenth Affirmative defenses pursuant to CPLR 3212(b) is warranted. The moving papers of the plaintiffs also estahlished that none of the four counterclaims asserted in the amended ans,vcrs served by the defendants to both complaints have merit (see Citimortgage J11c. v Pugliese. __ AD3d __ , 2016 WL 5795577 f2d Dept 20 16 J; Bank < N e w York Trust Co., N.A. v if Cltiejino. 142 AD3d 570. 36 "YS3u 512 [2d Dept 20161: Deutsche Bank N atl. Trust Co. v Na11ghto11, 137 AD3d l 199; .rnp1·a: Bank of A merica Natl. A ss 'n 1• Patino. I 28 AD3d 994. 9 NYS3d 656 [2d Dept 2015): Wells Fargo Bank, N.A . v E rohobo. 127 AD3d 1176, supra~ Raja m in v Deutsche Ba11k Natl. Trust Co. , 7'>7 F3d 7912d Cir. 20141). Accord ingly, the counterclaims asse1ted in such answers are d ismissed pursuant to CPI .R :n l 2(b). The court rejects defense counsel's claim that the plaintiffs' motion is premature due to the absence of disc(wery. The defendants failed to satisfy lhe threshold requirement of demonstrating that -7- [* 8] the disclosure items sought are materiaJ and necessaiy lo the establ ishment of a bona fide defense or viable counterclaim possessed by the defendanrs (see CitiMortgage, Inc. v Guillermo, _ AD3d_ , 2016 WL 6089227 (2d Dept 20161: Wells Fargo Bank, N.A. v Vasiliou, 127 AD3d 1351 . 8 NYS3d 6 72 [3d Dept 2015 J). The moving papers further established Nationstar's entitlement to the summary judgment on its complaint by producing the mortgage and the unpaid note. and evidence of the default and due proof of its standing to prosecute its claims for foreclosure and sale (see CitiMortgage, Inc. v Pugliese, _ AD3d __ , 2016 \.VL 5795577 [2d Dept2016]: .JPMorgan Cha.'ite Bank. N atl. Ass 'n v Weinberger, 142 AD3d 643. 37 YS3d 286 [2d Dept 2016]:A rgent Mtge. Co. , LLC v 35 Plank Road Realty Corp., 131 AD3d 909, 15 NYS3d 473 f2d Dept 2015 j; Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176, 9 NYS2d 312 l2d Dept2015): Central Mtge. Co. vMcClelland. 119 AD3d 885, 991NYS2d87 l.2dDept 2014.1: Jessabell R eal~v Corp. v Gonzalez, 117 AD3d 908, 985 NYS2d 89712d Dept 2014): Ba11k of New York .\1ellon Trust Co v McCall, 116 AD3d 993, 985 NYS2d 255 f2d Dept 2014]). No questions of facl were raised tending to rebut the plaintiffs prima facie showing of its entitlement to the summary judgments requested for the reasons set forth above. The moving papers also established the defaults in answering on the part of the remaining defendants following due service of the 2013 summons, complaint and other initiato1y papers as well as the plaintiff's po"session of viable claims for foreclosure and sale against them (see CPLR 32125[f]; Deutsche Ba11k Natl. Trust Co. '' Patrick . 136 AD3d 970, 25 NYS3D 364 [2d Dept 2016]~ U.S. Bank, N.A. vRazon, 115 ADJd 739, 740, 98r NYS2d 571 [2d Dept2014]). Accordingly, the defaults of all such defendants are hereby fixed and determined. Since the plaintiff has been a.warded surnmaiy judgment against the answering defendants and has established defaults in answering by the remaining defendants joined herein by service or process to the 20 l 3 complaint, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see RPAPL§ 1321 ~ Bank~fEastA sia, Ltd. vSmith ,201AD2d522.607 NYS2d 431f2dDept 1994l:VernumtFed. Ba11k v Chase, 226 AD2d I 034. 641 NYS2d 440 f)d Oept 19961). Submit Order of Reforcnce upon a copy of this order. DATED: November . "" l \, 2016 I I F IN AL DISPOSITION c.RA Ix I N ON-FINAJ . DtSPOSlTIO -8- .

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