Deutsche Bank Natl. Trust Co. v Francis

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Deutsche Bank Natl. Trust Co. v Francis 2017 NY Slip Op 31113(U) May 18, 2017 Supreme Court, Suffolk County Docket Number: 5796-2013 Judge: Daniel Martin 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 FOR~I co~ OIWER SUPRE~IE COURT OF THE STATE OF NEW YORK I.A.SPART 9 - SUFFOLK COUNTY IND£X NO.: 5796-2013 PRESENT: Hon. DANIEL MARTIN ~tOTIO~ ~~~~~~~~~~~~~~~~~~~~~ DEUTSCI fE BANK NATIONAL TRUST COMPANY. AS TRUSTEE FOR J.P. MORGA MORTGAGE ACQUISITION TRUST 2007-CIIS. ASSET BACKED PASS-THROUGH CERTIFICATES. SER1ES 2007-CI I5. Plaintiff. -against- x DATE: 2-16-16 (002) 3-16-16 (003) ADJ. DATE: 4-19- 16 <002. 003) ;-..Jot. Seq. #: 002-MG 003-MD PLAINT1FF'S ATTY: PAR.KER IBRAHIM & BERG LLC 5 Penn Plaza, Suite 2371 New York, N. Y. 10001 DEFENDANT'S ATTY: SUSAN FRANCIS, "JOHN DOE # I" to ··JOHN OE # 1O". the last I 0 names being fictitious and unknown to plaintiff, the persons or pa11ies intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, RONALD D. WEISS P.C. 734 Walt Whitman Road. Suite 203 Melville, N. Y. 11747 Defendants. Upon the reading and filing of the following papers in this matter: ( I ) Notice of Motion by the plaintif[ dated January '27, 2016. and supporting papers: (2) Notice of Cross Motion by the defendant Susan Francis, dated March 9, 2016. and supporting papers; (3) Opposition and Reply by the plaintiff served on April 18, 2016, and supporting papers: (t.I) Other: Stipulation to Adjourn dated February I 0, 20 16: (and 11tte1 hear iug cou11:ic:b · 01 al a1 gu111c11t:'! i11 .suppo1t of a11d oppo5ed to tire rrrot1tm ): and now it is ORDERED lhat this motion (#002) by the plainliff for. inLcr alia, an ordt:r: (I) pursuant to CPLR 3211 awarding summary judgment in its fa\'or against the defendant Susan Francis, striking her answer, and di sm issing the affi rmative defenses and counte rclaims asserted therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants: (3) pursuant to RPAPL ~ 1321 appointing a referee to (a) compute a moun ts due under the subjec t morlgage; and (h) examine and report whether the subject premises should be sold in one parcel or multiple parcels: and (-l) amending the caption is granted solely to the extent stated bdow. otherwise denied: and it is [* 2] Deutsche Bank Natl. Trust Co. ,. Francis. et. al. Index No.: 5796-2013 Pg. 2 ORDERED that the plaintiff is a\\·arded partial summary judgment dismissing the second cl1rough nineteenth aftirmati ,.e defrnses and the six counterclaims asse11ed in the defendant Sus:rn Francis· ans\\'er. ~il l \\'ith prejudice: and it is ORDERED that the caption is amended by substituting Donavon Hi nds. George Francis. Sanjay Francis. Roberc Williams and Vincent McAnuss for the fictitious .. JOH:\ DOE-!:! 1-5.. defendants. and by excising the fictitious ..JOH, DOE #6- l O" defendants: and it is ORDERED that the plaintiff shall to scn-e a copy of this order amending the caption of this action upon the Calendar Clerk of this Court: and it is ORDERED that the cross motion (#003) by the defendant Susan Francis. fo r inter al in. an order granting leave to compel discovery, rt:schedule foreclosure conferences and denying plaintiffs summa1y judgment motion is denied in its entirety: and it is ORDERED that the moving parties shall serve a copy of this order with notice of entry by firstclass mail upon opposing counsel and upon all appearing defendants that have not waived further notice within thirty (30) days of the date herein, and they shall promptly file the affidavits of service with the Clerk of the Court. This is an action to foreclose a mortgage on real property known as 3 Heritage Lane. Wheatley Heights, New York I I 798 ("the property''). On January 24, 2007, the defendant Susan Francis ("'the defendant mortgagor") executed an adj ustable-rate note in favor of JPMorgan Chase Bank ("the lender") in the principal sum of $480.000.00. To secure said note, the defendant mortgagor gave the lender a mortgage also dated January 24. 2007 on the property. The mortgage was recorded on June 6. 2007. By way of. inter alia. a series of endorsements with physical delivery. the note was allegedly transferred by the lender to Deutsche Bank National Trust Company, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CHS. Certificates, Series 2007-CI IS ("the plaintiff'). prior to commencement. The transfer of the note to the plaintiff was memorialized by a written assignment executed on September 24, 20 12. and subsequently duly recorded on November 20. 2012. The assignment specifics that it is together with ··all beneficial interest" in the mor1gage. Parenthetically. the defendant mortgagor acquired sole title to the property by indenture executed on January 24. 2007 by Alexander Troll inger and "Louisa Susan Ricketts now known as Susan Francis.'' The defendant mortgagor allegedly defaulted on the mortgage. by failing to make th~ monthly payment of principal and interest due on or about August l. 2008. and each month thereafter. Pursuant to a Trial Loan Modification /\greemcnt ..(Step One of a Two-Step Documentation Process) .. (''the trial modification··) effective December I. ~009 and made between Chase Home Finance ("Chase.. ) as lender t.ir servicer and the defendant mortgagor as borrower, the loan paymcms wen: substantially reduced. Whereas the original note required initial monthly payments in the sum of approximately SJ.545.20. th~ trial modification provides for. inter alia. monthly payments in the sum or approximately $3,J 09.61. due ~rn or before December l. 2009. January I. 20 I 0 and February I, 20 I 0. Thcrcalkr. Chase determined that [* 3] Deutsche Bank Natt. Trust Co. ,. Francis. et. al. [ndex "Ko.: 5796-2013 Pg. 3 the defendant mortgagor \\·as not eligible for a Home :\ffordable \Iodification under the 1lome Affordable \lodificmion Program c·l L..\MP .. ). Chase subsequently offered an in-house mod ification by way of letter dated .J unc I 0. 20 I 0 : ho\\'ever. the defendant allegedly never returned an executed copy of the Loan l\lodification Offer to it. and. as ::i result. the offer \\'as rescinded. After the defendant mortgagor allegedly failed to cure the default in payment. the plaintiff commenced this action by the filing of the !is pendens. summons and complaint on February 27. 2013. Issue was joined by the interposition of the defendant mortgagor· s answer dated March 26. 20 13. The ddendant mortgagor then 1110\'ed (#001) for ka\'e to amend her ans,ver. but the same was resol\'ed by stipulation dated April 25. 2015. and subsequently denied as withdrawn by long Corm order dated May 13. 2015 (Martin. J. ). Thereafter, the defendant mortgagor interposed an amended verified answer dated February 25. 20 15. By her amended answer. the defendant mortgagor denies all of the allegations in the complai nt, and asserts etghteen affirmative defenses. alleging. among other things, fraud and misrepresentation in the loan origination and servicing as \veil as violations of the Fair Debt Collection Practices Act ("'FD CPA") ( 15 USC§ 1692), the Real Estate Settlement Procedures Act (""RESPA") ( 12 USC§ 260 1. et seq.), and the Truth in Lending Act C'TTLN") (15 USC§ 1601. et seq). The defendant mortgagor also asserts six counterclaims alleging. inter alia. violations of the provisions of the FDCPA and the General Business Law § 349 (a) as well as bad fai th in the negotiation of the modification agreement and/or another modi fication. By her counterclaims, the defendant mortgagor ostensibly demands, among other things, damages, attorneys' fees. costs and disbursements. In response. the plaintiff interposed a verified reply dated .July I 0. 20 15 denying the material allegations in the contained in counterclaims. and asserting eleven affirmative defenses, alleging inter alia, the failure to: state a cause of action and mitigate damages; the statute of limitations and !aches: waiver, estoppel and/or unc lean hands; an accord and satisfaction; an offset: and frivolous claims without reasonable basis in law or equity. The plaintiff now moves fo r. inter alia, an order: (1) pursuant to CPLR 32 12 awarding summary judgment in its favor against the defendant mortgagor. striking her answer and dismissing the affirmative defenses and the counterclaims asserted therein; (2) pursuant to CPLR 32 15 fixing the defaults of the nonanswering defendants; (3) pursuant to RP APL § l 321 appointing a referee to (a) compute amounts due under the subject mortgage: and (b) examine and report \\·hether the subject premises should be sold in one parcel or multiple parcels: and (4) amending the caption. In support of the motion. the plaintiff submittcd. inter al ia, the pleadings: the endorsed note. the mortgage and the assignment: the trial modification: the afJirmation from its co unsel: the affidavit of amount due from Phonesay Say. a Vice Pres ident or the plaint iff: the affidavit of facts from Joseph G. De,·inc. another Vice President of the plaintiff: and the affida\·it of mailing from Amir Cohko\·ic. an · · ~rn Default Ops Specialist III .. of the plaintiff. The defem.lant mortgagor opposes the plaintiffs motion and cross 1110\·cs for. inter alia. an order scheduling another foreclosure settlement conference and compelling the production of certain discovery. ln oppos ition to the motion. the defendant mortgagor has submitted the anirmation of her counsel and her [* 4] Deutsche Bank Nae!. Trust Co. \'Francis. et. al. Index No.: 5796-20 13 Pg. -+ affidavit. In her opposing and mo,·ing papers. the defendant mortgagor reasserts her previously pleaded affirmati w defenses and counterclaims. alleging the fo llowing: che plainti tr s lack of stand ing; the pluinti ff/sen·ice1.. s alleged bad foi th in negotiating a potential loan modification: and predatory knding by the knder in the loan origination. In response to the cross motion. the plaintiff has fikd opposition and reply papers. O\rn f nitially. to the extent that the defendant mortgagor· s cross motion is procedural ly defective to the extent that the moving papers submitted herein do not fully recite the grounds for the relief sought along \rith the specific provisions of the Ci\·il practice la,,· and rules relating thereto (see . CPLR 221-+ [a]). To the e:'\tent that the requested relief is supported by the affirmation of counsel and/or the affidavit from the defendant mortgagor. it has been considered. Turning to the motion-in-chief. a plaintiff in a mortgage foreclosu re 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. Bank v Deutsch . 88 AD3d 691. 930 NYS2d 477 [2d Dept 2011]; Wells Fargo Bank v Das Karla. 71 AD3d 1006. 896 NYS2d 681 [2d Dept 20 10]; Wasltingto11 M ut. Bank, F.A. v O'Connor, 63 AD3d 832. 880 NYS2d 696 [2d Dept 2009]). The burden then shifts to the defendant to demonstrate "the e:'\istence of a triable issue of fact as to a bona fide defense to the action, such as waiver. estoppel. bad faith. fraud, or oppressive or unconscionable conduct on the part of the plaintiff' (Capstolle Bus. Credit, LLC v /mperia Fami(F Realty, LLC. 70 AD3d 882, 883, 895 NYS2d l 99 [2d Dept 20 l O], quoting Mal10pac Natl. Ba11k v Baisley, 244 AD2d 466. 467. 644 NYS2d 345 [2d Dept 1997]). By its submissions. the plaintiff established its prima facie entitlement to summary judgment on the complaint (see, CPLR 3212; RP APL § 1321; U.S. Ba11k N.A. v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]: Capital On e, N.A. v Knollwood Props. II, LLC, 98 AD3d 707. 950 NYS2d 482 [2d Dept 20 12]). In the instant case. the plaintiff produced. inter alia. the endorsed note with an endorsed allonge. the mortgage. the assignment and evidence ofnonpayment (see, Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, 655 NYS2d 631 [2d Dept l 997] : First Trust Natl. Assn. v Meisels, 234 AD2d 414, 65 1 NYS2d 121 [2d Dept 1996]). Thus. the pla intiff demonstrated its prima facie burden as to the merits of this foreclosure action. When moving to dismiss an affirmative defense. the plaintiff bears the burden of demonstrating that the affirmative defense is ·'without merit as a matter of law" (see. CPLR 32 11 (b]; Vita v N ew York Waste Servs., LLC, 34 AD3cl 559. 559, 82.+ 1\fYS2d 177 [2d Dept 2006]). In reviewing a motion to dismiss an affirmative defense. this court must liberally construe the pleadings in faYor of the party asserting the defense and gi,·e that party the benefit of e\·cry reasonable inference (see. Fireman's Fund /us. Co. v Farrell, 57 AD3d ·n 1. 869 NYS2d 597 [2<l Dept 2008]). :vtoreover. if there is any doubt as to the ava ilabi lity of a dercnse, it should not be dismi ssed (see. id). '"A defense not properly stated or one that has no merit. howe\·cr. is subject to dismissal pursuant to CPLR 321 l(b). ft. thus. may be the target of a motion for summary judgment by the plaintiffsccking dismissal ofany afJirmati\·e defense after thejoindcr of issue .. (Carver Fed. Sav. Bank v Redeemed Christian Cl111rch of God, lilt/. Clwptd, HHH Parish, Lo11g Is., NY, In c.. 35 Misc3d 1228 [A]. 95.+ NYS2d 758 [Sup Ct, Suffo lk County 2012. slip op. at 3]). fn order for a defendant to successfully oppost: such a motion. the defendant must shO\\ hi:> or her possession ofa bona fide defense. i.e .. one having ··a plausibk ground or basis which is fairly arguable and [* 5] Deutsche Bank Natl. T rust Co. \' Francis. et. al. Index \"o.: 5796-2013 Pg. 5 of substantial character" (Feinstein 1· Le1:r. 121 AD2d 499. 500. 503 :\!YS2d 821 [2d Dept 19861). Selfse1Ting a nd conclusory allegations dl) not raise issues oftact (st'e. Rosen Auto leasing. file. v Jacobs. 9 AD3d 798. 799-800. 780 1YS2d-+38 [3d Dept 200-+] ). a nd do not require the plaintiff to n::spond to a llegeJ affirmative defenses \\·hich are based on such allegations ( C/rnrter On e Bank, FSB v Leone. 45 AD3d 958. 959. 84 5 NYS2d 513 [3d Dept 20071) . \\'here . as here. an anS\\·cr serYed includes the defense of standing. the plaintiff must pro\·e its standing in order to be entitled to n.:licf (st'L', CitiMortgage, inc. v Rose11tlral. 88 AD3d 759. 93 l NYS2d 638 [2d Dept 201 l ]). The standing of a plaintiff in a mortgage foreclosure action is measured by its O\\'nersh ip. holder status or possession of the note and mortgage at the time of the commencement of the action (see . Bank ofN.Y. vSi/verberg, 86 AD3 d 274. 926 NYS2d 532 [2d Dept 20111: U.S. Bank, N.A. v Colly more. 68 A03d 752. 890 NYS2d 578 [2d Dept 2009]). A mortgage " is merely security fo r a debt or other obligation. and cam1ot exist independently of the debt or obligation"' (Deutsche Bank Natl. Trust Co. vSpanos. 101 AD3d 909, 911. 961 NYS2d 200 [1d Dept 20 13] [internal quotation marks and citations omitted]). Holder status is establis hed where the plaintiff is the special indorsee of the note or takes possession of a mortgage note that contains an endorsement in blank on its face or anached thereto, as the mortgage follows an incide nt thereto (see . Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674. 838 N YS2d 622 [2d Dept 2007]: First Trust Natl. Assn. v Afeisels. 234 AD2d 414, supra). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the forec losure action is s ufficie nt to transfer the obligation, and the mortgage passes with the debt as a n inseparable incident" (U.S. Bank, N.A. 1• Collymore, 68 AD3d 752. supra at 754 [internal quotation marks and citations o mitted]). Further. "[n)o special fo rm or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it" (Suraleb, Inc. v lutemational Trade Club, Inc .. 13 AD3d 612. 611. 788 NYS2d 403 [2d Dept 2004) [internal quotation marks and c itations omitted]). Moreover. .. [o]ur courts have repeatedly held that a bond or mortgage m ay be transferred by delivery without a written instrument of assignment" (Flyer vSulliva11 , 284 AD 697. 699. 134 NYS2d 521 [1st Dept 1954]). Thus. ··a good assignment of a mortgage is made by deli very only.. (Curtis v ~loore. 152 NY 159. 162 [ 1897). quoting Fryer v Rockefeller. 63 NY 268, '276 [1875]: see. People's Trust Co. v Tonkonogy. 144 AD 333. 128 NYS 1055 [2d Dept 1911 J). The effecl of an endorsement is to make the note ..payable to bearer" pursuant to UCC § 1-2.0 l (5) (see . UCC 3-104: Fnmzese v Fidelity N. Y., FSB. 214 AD2d 646, 625 NYS2d 275 [2d Dept 1995) ). When an instrument is indorsed in blank (and thus payable to bearer). it may be negotiated by transfer of possess ion a lone (see, UCC § 3-202: § 3-204: § 9-203 [g]: Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674. supra: First Trnst Natl. Assn. i' Nleisels. 234 AD2d 414 . supra: Franzese 1 Fidelity N. Y., FSB. 2 14 A02d 646. supra). Furthermore. CCC § 9-203 (g) explicitly provides that the 1 or ussignment of an interest the seller or grnntor of a security interest in the note automatically transfers a corresponding interest in the mortgage to the assignee. 8) its submissions. the plaintiffdemonstrated its stand ing by 1,.rny of physical possession of the note prior to co mmenc~me nt (see, Aurora loan Servs., LLC v Taylor. 25 NY3d 355, 12 NYS3d 612 [2015 J: Komlaur Capital Corp. l 1 llcCary. 115 ADJ<l 649. 981 ~YS2d 547 (2d Dept 2014]: Deutsche Bank /\'rlll. Trust Co. v Whalen , I 07 AD3d 931. 969 NYS2d 82 I2d Dept 2013]). In his affidavit, Mr. Devine alleges tha t the end orsed no te v\'tlS in the le nder' s possession si nce March 9. 2007. a date being prior to 1 [* 6] Deutsche Bank Natl. T rust Co.\' Francis. et. al. Index 1\o.: 5796-2013 Pg. 6 commencement. and that the lender has remained in continual possession of the note. directly or through its custodian. since that date. The doc umentar\' e\·idence submitted also includes. amonjl; other things. the . ... note transforred \·ia a series of endorsements ((/. Slutsky l' Bloo111i11g Groi·e Inn , Inc.. 14 7 AD2d 208. 542 NYS2d Tl. I [2d Dept 1989] ). ~ The plaintiff also dcmonstn.uecl its stund ing by. inter alia. the submission of the \\Titten assignment of the mortgage and the note executed prior to commencement (st'e . U.S. Bank N.A.. v Aktmde. 136 AD3d 887. 26 NYS3d 164 l.2d Dept 2016]; Ko11daur Capital Corp. v ft1cCary , I 15 AD3d 649. suprn; Chase llome Fin., LLC vl~-liciotta . I 01 A03d 1307. 956 NYS2d 271 [3d Dept 20 I 2); GRP Loan, LLC l' Taylor, 95 AD3d 117:2. 945. YS2d 336 [2d Dept 2012]). In this case. the assignment. which was executed and recorded prior to commencement, incl udes a reference to "all beneficial interest" in the mortgage (see. Chase Home Fi11. , LLC v ft-ficiotta . I 0 I AD3d 1307. supra). Such evidence demonstrates that the plaintiff holds and/or owns the original note and mortgage. Thus. the plaintiff demonstrated its prima facic burden as to the merits of this forec los ure action and as to its standing. The court turns next to the issue of the plaintiffs compliance with the 90-day pre-forec losure notice requirements of RP APL § 1304. In its present fo rm, RP APL § 1304 provides that in a legal action. including a residential mortgage foreclosure action. at least 90 days before the lender commences an action tain language and the against the borrower. the lender must send a notice to the borro\-ver including ce1 notice must be in 14-point type. The notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower. and if different. to the residence that is the subject of the mortgage (see , RPAPL § 1304). Such notice shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice (id.) . The statute further provides that the notice shall contain a list ofat least five housing counseling agencies that serve the region where the borrower resides (id.). RPAPL § 1304 provides that the notice must be sent to the ··borrower," a term not defined in the statute (Aurora Loan Servs. , LLC v Weisblum, 85 AD3d 95. 105, 923 NYS2d 609 [2d Dept 2011 ]). Proper service of the RP APL § 1304 notice containing the statutori ly-mandated content on the "borrower·· or "borrowers.. is a condition precedent to the commencement of a fo reclosure action, and the plaintiffs failure to shov,· strict comp Iiance requires dismissal (Hudson City St1v. Bank v DePasquale. 113 AD3 d 595. 596, 977 NYS2d 895 [2d Dept 20 14); Deutsclte Bank Natl. Trust Co. v Spanos. I 02 AD3cl 909. 910. 961 NYS2d 200 [2d Dept 2013] : A urora Loan Servs., LLC v Weisblum. 85 AD3d 95. supra at 103: see also. Pritcltard v Curtis. I 0 I AD3d 1502. 1504. 957 NYS2d 440 [3 d Dept 20 121). Since this action was co mmenced on or after January 14. 20 I 0. the 90-day notice requirement set forth in the statuk is applicable (see . RPAPL § 130-k Laws 2008. ch 4 T2 . ~ 2. eff Sept 1. 2008. as amended by Laws 2009, ch 507. § I-a. eff Jan 14, 20 I 0). Thus. in support of its motion fo r summary j udgment on the complaint, the plaintiff was required to pro,·e its allegations by tendering sufficient evidence demonstrat ing the absence of material issues as to its strict compliance with RPAPL 1304. and failure to make this shO\Ying requires denial of the motion. regardless of the opposi ng papers (Aurora Loan Servs., LLC v Weis blum. 85 AD3d at 106 (citation omitted]). Jn meeting this burden. the plaintiff benefits from the long-stand ing doctrine or pn~ s umption of n:gu larity: genera lly, a letter or no ti c\.! that is properly stamped. addressed. and mailed is presumed to be [* 7] Deutsche Bank Natl. Trust Co.,. Francis. et. al. Index No.: 5796-2013 Pg. 7 deli\'ered by that addressee ( Trusts & Guar. Co. v Bamltardt. 170 Y 350. 352 [1936 ]: News Syndicate Co. v Gatti Paper Stock Corp .. 256 >! Y 211. 21~-216f1931 ]: Co1111ol(r v Allstate Ins. Co .. 213 .-\D2d 787. 787. 623 J\YS2d 3 73 [3d Dept 1995]: Keamey v K eamey...Q ~lisc3d 360. 369. 9791\Y 2d 226 [ up Ct. \fonroe Coun ty 20131). The presumption of receipt by the addressee ··may be created by either proof of actua l mailing or proofofa standard office practice or procedure designed to ensure that items are properly addressed and mailed" (R eside11tial lloldi11g Corp. v Scottsdale Ins. Co.. 286 AD2d 679. 680, 729 YS2d 776 [2d Dept 2001 )). CPLR 21 03 ( f)( 1) defines mailing as ··the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the add ress designated by a person for that purpose or. ifnone is designated. at that person· s last known address. in a post office or otlicial depository under the exclusiYe care and custody of the Uni ted Stales Postal Sen·ice within the state" (see, Lindsay v Pasternack Ti/ker Ziegler Walsh Stanton & Romano LLP. 129 AD3d 790, 12 NYS3d 124 [2d Dept 2015]). " ff that proof is established. the burden shifts to the borrower." and "'the final legal truism prevails: once the presumption of proper service has been established, mere denial of receipt is insufficient to rebut the presumption" (Keamey v Kearney. ~2 Misc3d 360. supra at 370; see. Matter ofA T1 One v Landaverde, 2 NY3cl ~72. l1 478, 779 NYS2d 808 l2004]). By its submissions. the plaintiff demonstrated compliance with the 90-day notice requirements of RP APL 1304 (see, Zara bi v !vfova/Jedia11, 136 AD3d 895, 26 NYS3d 153 [2d Dept 2016); JP Morgan Chase Bank, N.A. v Sc/Jott. 130 AD3d 875. 15 NYS3d 359 [2d Dept 2015]; Wells Fargo v Moza. 129 AD3d 946. 13 NYS3d l '27 [2d Dept 201 5); Wachovia Bank, N.A. v Carcano, I 06 AD3d 724, 965 NYS2d 516 [2d Dept 2013]). In this case. compliance with the 90-day notice requirements of RP APL§ 1304 was demonstrated by submission of the affidavit of mailing from Amir Cohkovic. the affidavit of facts from Joseph G. Devi ne. and by the lender or servicer's business records detailing a standard of office practice or procedure designed to ensure that said items were properly addressed and mailed (see, Residential Holding Corp. v Scottsdale Ins. Co.. 286 AD2d 679, supra). Thus, a presumption of receipt arises (see, Vivia11e Etienne Afed. Care v Country-Wide Ins. Co .. 25 NY3d 498, 14 NYS3d 283 [2015]). By her first affirmative defense. the defendant mortgagor asserts that the complaint fai ls to state a cause of action. however, she has not cross moved to dismiss the complaint on this ground (see. Butler v Catinella. 58 AD3d 145. 868 NYS2d 101 (2d Dept 2008]). Also. as indicated above. the plaintiff has demonstrated that the complaint sets forth a valid cause of action for, among other things, foreclosure and · sale. Therefore, the first affirmative defense is surplusagc. and the branch of the motion to strike such defense is denied as moot (see, Old Williamsburg Candle Corp. v Seneca Ins. Co., In c.. 66 AD3d 656. 886 NYS2d 480 [2d Dept 2009] : Sc/1midt's Wholesale, In c. v Jlfiller & Lelwum Co11str.. 173 A D2d I 004. 569 NYS2cl 836 r3d Dept I 991] ). The plaintiff demonstrated that it pro,·ided the required TIU\ and II UD-1 disclosures to the defendant mortgagor at the loan origination. both of which are executed and dated January 24. 2007 (see . HSBC Ba11k USA v Picarelli. 36 MiscJd 1218 [A] , 959 NYS2d 89. q{fd on other grounds hy 11 0 AD3d 103 l. 974 NYS2d 90 [2d Dept 20 13] [TILA requirements satisfied where the lender provided the required information and forms to the obi igor at the closi ngj ). Parenthetically. the defcn<lant mortgagor· s signature placed on the IJUD-1 Acknowledgment is a representation by her that ··[she] reviewed the llUD-1 Settlement Stat<:ment an<l that the creditors li sted and the amounts to be paid in connection wi th the loan transac tio n arc correct. .. The TILi\ statement a lso contains a representation by the defendant mortgagor [* 8] Deutsche Bank Natl. Trust Co. \' Francis. et. al. Index No.: 5796-2013 Pg. 8 that "[she l hereby ack.nowledgel sj read ing :.111d recei\·ing a complete copy of this disclosure:· Furthermore. lhc notice ofri ght to cancel dated and executed on January 2-L 2007 contains an ackno\\'kdgment ofreceipt of two copies of said notice and one copy or the TILA. The plaintiff submitted sufficient proof to establish. prima focie. that the remain ing aflirmati\·c defenses set forth in the ans\\'er arc subject to dismissal due to their umneritorious nature (see. Bec/1er io Feller, 6-+ AD3d 6T2. 884 NYS2d 83 (2d Dept 2009]; Wells Fargo Bank Jlfi1111., JV.A. i• Perez,-+ 1 AD3d 590. 83 7 NYS2d 877 [2d Dept 2007]: Coppa v Fabozzi. 5 AD3<l 718. 773 NYS2d 60-+ [2d Dept 200-+] [unsupported affirmati\'e defenses are lacking in merit]: see also. Gillma11 v Chase .~Ja11/zattt111 Bank, N. A .. 73 NY2d I. 537 iYS2d 787 [1988] (unconscionability generally not a defense]: Emigrant 1 lftge. Co., Inc. v Fitzpatrick. 95 AD3d 1169. 945 NYS2d 697 [2d Dept 2012] [an affirmative defense asserting violations of General Business La\\'§ 349 and/or engagement in decepti\'e business practices lacks merit where. inter alia. clearly written loan documents describe the terms of the loan]; La Salle Bank N.A. v Kosarovic/1 , 31 AD3d 904. 820 NYS2d 144 (3d Dept 2006] [an alleged violation of TJLA does not constitute an affirmative defense to a defendant's default in payment]; CFSC Capiwl Corp. XXVII v Bacftma 11 f'vlec/1. Sheet f'vletal Co .. 2-+ 7 AD2d 502 . 669NYS2d 329 (2d Dept 1998) [an affirmative defense based upon the notion of culpable conduct is unavailable in a foreclosure action]; Co1111ectic11t Natl. Ba11k v Peach Lake Plaza. 204 AD2d 909, 612 NYS2d 494 [3d Dept 1994] [defense based upon the doctrine of unc lean hands lacks merit where a defendant fai ls to come forward 'Nith admissible evidence of showing immoral or unconscionable behavior]: Deutsche Bank Natl. Trust Co. v Campbell, 26 Misc3d 1206 [A]. 906 NYS2d 779. 2009 NY Slip Op 526780 [U] [Sup Ct, Kings County 2009) [a disclosure violation of the Real Estate Settlement Procedures Act, 12 USC § 2601. et seq., does not constitute a valid defense to a mortgage foreclosure]). Further. a bonower may not properly claim lo have reasonably relied on representations that are plainly at odds with the loan documents gO\·erning the terms of the loan (Aurora Loa11 Servs., LLC v Enmv, 126 AD3d 830, 831, 7 NYS3d 146 [2d Dept 2015]). and '"a party who signs a document without any valid excuse for having fai led to read it is 'conclusively bound' by its terms'' (see . Patterso11 v Somerset lu vs. Corp .. 96 AD3d 8 17. 81 7. 9-+6 '.\IYS2d 217 (2d Dept 2012]). Moreover. non-parties to a lender's pooling and servicing agreement lack standing to assert noncompliance therewith (see. Bank of Am. N.A. v Patillo, 128 /\D3 d 994. 9 NYS3d 656 [2d Dept 2015]: Wells Fargo Bank, N.A. v Erobobo, 127 /\ D3d 11 76, 9 NYS3d 312 [2d Dept 2015]: Bank ofN. Y. 1 Uello11 v Gales. 116 AD3d 723 . 982 NYS2d 911 [2d Dept 2014]: see also. Griffin v Da Vi11ci Dev., LLC, -+-+ /\D3d 1001. 8-+5 NYS2d 97 [2<l Dept 2007] [those without privity ofcontract or \vho arc not the intended thi rd-party beneficiaries thereof cannot bring defenses/claims under the contract]). Turning to the counterclaims. the essential clements of a cause of action for fraud are "representati on ofa material l!xistin g fact. fal sity. scicmcr, deception. and injury" (C/u11111el 1 llaster Corp. I' Alu111i1111111 ltd. Sales, Jue.. -+ NY2d 403. -+0 7. 176 NYS2d 259 [ 1958]). A party that has fraudu lently indm.:ed another to enter into a contract may be liable in to11 for damages (see. New York Uufr. 1• Co11ti11e11tal J11s. Co., 87 NY2d 308. 639 NYS2d 283 l 1995]: Sabo i.· Delman , 3 NY2d 155 . 164 NYS2d 71-+ 11 957] ). To establish a cause or ac tion for Craudukn t inducement in conjunction with the actio n for breach of contract. the plaintiff must show thm defendant breached a duty distinct from his contractual [* 9] Deutsche Bank Natl. Trust Co.,. Francis. et. al. Index No.: 5796-201.3 Pg. 9 duties. not simply that he foileJ to ful till promises of future aces (see . Weitz v Smith. 231 .-\Old 518. 6..j. 7 NYS2d 236 [2d Dept 1996] ). Thus. a plaintiff must present proof that (I) the defendant made material representations that were false : (2) Lhe defendant knew the representations m~re folse and made them with the intent to decei\'e the plaintiff: ( 3) the plainci ffjusti fiably relied on the defrndanf s representations: and (..j.) the pln intiff was injureJ as a result of the defendant' s representations (Channel 1 l/aster Corp. v Alu111i11u111 Ltd. Sales. J11c .. ..j. NY'l<l 403. supra at -W7: 113-14 Owners Corp. v Gertz. 123 AD2d 850. 851. 507 l'\YS2d 46-J. [2<l Dept 1986)). Each of the foregoing clements must be supported by factual allegations contain ing the details constituting the wrong sufficient to satisfy CPLR 3016 (b) (Black v Clzitte11de11. 69 NY2d 665. 668. 511NYS'.2d833 [1986]: Priolo Communications v il!CI Telecom. Corp .. 2-J.8 AD2d 453. 454. 669 N YS~d 376 [~d Dept 1998] ). A cause ofaction to recover damages fo r fraudulent concealment requires. in addition to allegations or scienter. reliance, and damages. an all egation that the defendant had a duty to disclose material information and that it failed to do so (High Tides, LLCv Del'llichele. 88 AD3d 954. 957. 93 l NYS2d 377 (2d Dept 2011 ]). "The elements of a cause of action to recover for constructive fraud are the same as those to recover fo r actual fraud with the crucial exception that the element of scienter upon the part of the defendant. his [or her] knowledge of the fal sity of his representation, is dropped .. . and is replaced by a requirement that the plaintiff prove the existence of a fiduciary or confidential relationship warranting the trusting party to repose his [or her] confidence in the defendant and therefore to relax the care and vigi lance he [or she] would ordinarily exercise in the circumstances" (Brown v Lockwood, 76 AD2d 721. 73 L 432 NYS2d 186 (2d Dept 1980]). Where a cause of action is based on a misrepresentation or fraud. "the circumstances constituting the wrong shall be stated in detail" (CPLR 3016 [b]; see. Mandarin Trading Ltd. v Wildenstei11. 16 NY3d 173, 919 NYS2d 465 (2011 ]). To prevail on a claim of unjust enrichment, a party must show that ( 1) the other party was enriched, ('.2) at that party's expense, and (3) that "it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered " (Paramount Film Distrib. Corp. v State of New York . 30 NY2d -1-15. -1-21. 33-1- NYS2d 388 (1972]). Further, a person may be deemed to be unjustly enriched if she has received a benefit. the retention of which would be unjust based upon the circ umstances surrounding the transfer of property and the relationship of the parties (Sharp v Kosmalski, 40 NY2d 119. 122. 386 NYS2d 72. 75 [1976]). To the extent that the defendant mortgagor alleges fraud in the inducement, generally. a representation by a lender that a bo1TO\\·cr can afford to repay a prospccti ve loan is an expression or opinion of present or future ex pectat ions. \V hich is not actionabk and cannot form the basis for a claim against the lender (see. Goldman v Stro ugh Real Estate. 2 AD3d 677. 770 NYS2d 9-1- f2d Dept 2003]: Crossla11d Srm, F.S.B. v SOI Dev. Corp .. 166 AD2d 495. 560 NYS2d 782 [2d Dept 19901). Furthermore. the legal relationshi p between a borro\vcr and a bank is a contractual one of debtor and creditor and does not create a fiduciary relationship bt:twecn the bank and its borrower or its guarantors (see . Sta11dard Fed. Bank 1• H ealy. 7 AD3d 610. 777 NYS2d -l99 [2d Dept 200-l ]: see also. Walts 1• First U11io11 Mtge. Corp .. 259 ,\D2d 322. 686 NYS2d 428 [I ' 1 Dept 1999j). To the extent that the defendant mortgago1.. s counterclaims soun<l in fraud and misrcprcs(!ntati on. the same lack merit as a matter of la\\' because she foiled to all ege that the plaintiff or th~ lender owt:d her [* 10] Deutsche Bank Natl. Trust Co.\' Francis. et. al. Index No .: 5796-2013 Pg. 10 a fiduciary duty with respect t0 her future ability to afford tht! mortgage (see ge11eraf~1·. J la11dari11 Trading Ltd. 1· 1Vilde11stei11. 161\YJd 173. s11pm: Scflwatka v Super 1 lli!lwork, Inc. . 106 AD3d 897. 965 YS2d 5-t 7 [2d Dept 201 J]: Le1•i11 ii Kitsis. 82 AD 3d I05 I. 920 ~YS2d 13 l [2d Dept 20 111 ). Additionally. che defendant mongagor's general factual assertions do not satisfy the pleading requirements of fraud (see . A.bdouralwmane v Public Stor. lnstit11tio11al Fund. 113 AD3d 6H. 978 ~YS2d 685 [2d Dept 201-t]: Goel v Ra111aclu111dra11 . 111 AD3d 783. 975 NYS2d 428 [2d Dept 2013): Jon es v OTN Enter., Inc .. 8-t AD3d I 027. 922 NYS2d 810 [2d Dept 201 1J; High Tides, LL C v DetUiclzele. 88 A03d 954. suprn). ln any event. to the degree that the counterclaims are based upon fraud and misrepresentation. they are untimely (see.CPLR213 (8): Williams-Guilla11111e1•Ba11kofA111., 1 .. I30AD3d 1016, 1-t. ·ysJd-t66(2dDept \'.A 2015]: Pike 11New York Life l11s. Co., 72 AD3cl 1043. 901NYS2d76 [2d Dept 20 10] Ricca v J'a/e11ti, 2...J. AD3d 647, 807. NYS2d 123 [2d Ocpl 2005]). With respect to the defendant mo11gagor ·s affinnati ve defense and counterc Iaim asserting violations of the FDCPA, the plaintiff established. prima facie. that the FDCPA docs not apply to it inasmuch as it acquired the right to service the defendant's lonn prior to his default (see, JPilforgan Chase Bank, N.A v Mantle. 134 ADJd 903, 23 NYS3d 258 [2d Dept 20 15]). Under the FDCPA an entity crurnot be a debt collector unless the debt it attempts to collect is in default (A librandi v Fin. Outsourcing Servs., 333 F3d 82. 88 (2d Cir. 2003 ]). Also. prevailing authority holds that the FDCPA does not generally apply to a creditor seeking to enforce a contract. such as a mortgage or a note (United Cos. Le11di11g Corp. v Caudela, 292 AD2d 800, 801-802, 740 NYS2d 543 [4 111 Dept2002)). To the extent that the defendant mortgagor alleges that the lender extended an unaffordable loan to her, "the fact that the [defendant mortgagor] sought and received a loan [she] could not afford does not mean that [she] can now proceed on a Section 349 claim against the pa11y that made [her] mistake possible (see. Hayrioglu v Granite Capital Funding, LLC, 794 FSupp2d 405, 413 [US Dist Ct, ED NY 20 11]). Moreover. a borrower may not properly claim to have reasonably relied on representations that are plainly at odds with the loan documents governing the terms of the loan (A urora Loan Servs., LLC v Enmv, 126 AD3d 830, 831. 7 NYS3d 146 (2d Dept 2015)). The plaintiff also demonstrated that the lcrms of the subject mo11gage loan \\t:rc fully st:t forth in the loan documents. and that no deceptive act or practice occurred in this case (see. Disa Realty , Jue. I' Rao, 137 AD3cl 740, 25 NYS3d 677 l2d Dept 2016) : S/1011ak v Long Is. Commercial Bank, 50 ADJd 11 18, 858 NYS2d 660 r2d Dept 2008]). Moreover, the defendant mortgagor cannot claim to ha\'e been misled by an inaccurate statement of income in the subject loan application because she was a\varc of her O\\·n income (see. Deutsche Bank Natl. Trust Co. i• Si11clair. 68 AD3d 91-L 89 l rys2d 4-t.5 [2d Dept 2009)). The fifth counterclaim. \Vhich recites certain pro\'isions of GBL ~ 349, fails to state a cause of action bccause. among other things. there are no al legations of improper actions by the lender that had a ··broad impact on consumers at large·· ( Golde11 Eagle Capital Corp. v Paramount ,l/gmt. Corp .. 88 AD3d 6.+6. 931 NYS2cl 632 f2cl Dept 201 1] ). In any event. to the extent that the fifth counterclaim is based upon vio lations or GBL § 3..+9, \vhich carry a statuti..: or limitati ons of less than s ix years. the same is also time-barred (see, 28 USC§ 1658 [b]: CPLR 21-t l2J: Gaido11 v Gtwrdia11 life In s. Co. ofAm.. 96 NY2d 201. 727 YS2d 30 [200 I]: Wi/liams-Guilla11111e v Bank of Am.. N.A .. 130 AD3d I 016. suprnl. [* 11] Deutsche Bank ~atl. Trust Co. ,. Francis. et. al. Index No.: 5796-2013 Pg. 11 To the extent that any of the cuurnerclaims are based upon alleged \·iolutions of RES PA. the same are untimely because any claims under rhat damages under that statute must be brought ,,·ithin one year o f the claimed statutory Yiolation ( vee. 12 L'SC § 261-L .\loll ,. CS Life Title Ins. Co.. 65.f F Supp I012 [SONY l 987]l. Notably. ··lt]o han: a Yi able cause of action under RES PA ... indiYiduals must sho\\' not only the fai lure to comply \\'ith the provisions of Section 2605. but also actual d~unagc s to the borro\\'cr as a result of the failure. as set fo rth in 2605( t)( I )(A). as ''ell as any additional damages that the court may al lo,,· in the case of a pattern or practice of noncompliance with the requirements of Section 2605. in an amount not to exceed 1.000 dollars" (Jlidouin v Doll'ney S(ll'. & Loan Assoc., F.A .. 83-l F Supp 2d 95. 112 (ED 1Y 2011) [internal quotation marks and citations omitted]). Fu11her. dismissal of a claim under 12 USC § 2605 is appropriate where the complaint '"merely prays for relief without specifying the injw·y l.plaintiftl suffered'' (Midouin v Downey Sav. & Loan Assoc., F.A. .. 834 F Supp 2d 95. 11 2 (EONY 20 11) [internal quotat ion marks and citations omitted]). To the extent that the affirmative defenses and the counterclaims are based upon · an alleged violations of the FDCPA. such lack merit. The defendant mortgagor makes no claim that the plain ti ff wro ngfully reported negative information to a credit reporting bureau at a time when the plaintiff had failed to provide her. despite a demand, with a detailed breakdown of the exact amount owed to the plaintiff (15 USC§ J 692a [6]). In this case. the defendant mortgagor also makes no allegation that the plaintiff·'in the process of collecting [its] O\\'n debts. used any name other than [its] own which vvould indicate that a third person [was] collecting or attempting to collect such debts" ( 15 USC § l 692a [6]). In oppos ition to the motion, the defendant mortgagor has offered no proof or arguments in support of any of the pleaded defenses or the co unterclaims asserted in the answer, except those noted above. The failure by the defendant mortgagor to raise and/o r assert each of the remaining pleaded defenses and the counterclaims asserted in the answer in opposition to the plaintiffs motion warrants the dismissal of same as abandoned under the case authorities cited above (see, Kuehne & N agel v Baiden . 36 NY2d 539. supra; see also, J adeline D 'A 11tlto11y E11ters.,l11c. vS okolowsky, 101 AD3d 606, supra). All of the unsupported V affirmative defenses and the counterclaims asserted in the answer are thus dismissed. In her aflidavil. the defendant mortgagor alleges that she \\'HS given three forec losure conferences. but that this matter was released from the foreclosure conference part. The defendant made several attempts to apply for a modification and made three payments of approximately $3.109.61. for months of December 2009, January 20 10 and February 2010. According to the defendant mortgagor. she was denied a modification because she deposited a substantial amount of funds in to her bank account that were controlled by her as executor orh~r uncle"s estate. but wh ich she did not inherit. She further alleges that she signed and returned a copy of the proposed pcnnanent modification application. The defendant mortgagor requests an opportunity for another modification to sa\'e her home. The plainti IT demonstrated its standing. as indicated abo,·c. The cou1i ti nds that none of the d~fendant mortgagor's assertions give rise to a quest ion of fact as to the plainti!Ts standing (sec. ~Velis Fargo Bank, N.A. v Clrnrlaff, 134 AD3d 1099. 24 YS3d 317 [2d Dept 20151: LNV Corp. ii Francois, 134 AD3d I 071. 22 NYS3d 543 [2d Dept 2015 J: Peak Fin. Partn ers, Inc. v Brook. 119 AD3d 539. 987 \!YS2d 916 [2d Dept 201-l ]: Bankers Trust Co. v Hoo vis. 263 AD2d 937. 69-l l\iYS::!d 245 [Jd Dept 1999] ct.'. Countrywide Home L oa11s, Ju e. v Gress. 68 AD3d 709, 888 YS2d 914 [2d Dept 2009] ). [* 12] Deutsche Bank >Jatl. Trust Co. ,. Francis. et. al. Index );o.: 5796-2013 Pg. l :'. fYen if the plaintiff presently lacked standing. the \alidity of the mortgage itsdf \\"Ould not be thereby Yitiated (see. H o mar 1• American H ome .lltge. Acceptance, Inc.. 119 AD3d 900. 989 >IYS2d 856 [2d Dept 201-t] ). \foreoYer. the absence of standing on the part of a plainti ff is not an actionable \\'rong (see, L.S. Bank, !\:-t 1· Reed. 38 ~ fi sc3d 1206 lA ]. 201 3 NY ~disc LEX IS 6. 2013 \\'L -+98 17. 2013 Y Slip Op 5000-t [l r1(Sup Ct. Suffo lk County 2013. sli p op. at 5]: see also. Deutsch e Bank Natl. Trust Co. v Hunter. 100 AD3d 810. 95-t NYS:'.d 181 (2d Dcpr 2012] ). In any ewnr. the documentary e\ idencc submitted by the plaintiff conclusively establishes the \'alidity of the subject mortgage and note (see. Jalta11 v U.S. Bank Natl. Assn .. 127 AD3d 926. 9 'YS3d 65 [:'.d Dept 2015]: Acocella 1• Bank 0/1 Y. 1 \: lfello11. 127 AD3d 891. 9 l\YS3d 67 (2d Dept 2015) ). Moreover. the defendant mortgagor· s speculation and conclusory contentions q ucsti oning the intent of the parties to the assigmncnts, which appear aimed at obsc uri ng the issue of nonpayment. arc also without merit (see. Finance v Abundant Life Clturclt, U.P.C., Inc.. 122 AD3d 918. 998 NYS2d 387 [2d Dept 2014]; Clwse Home Fin., LLC v ilJiciotta. 101AD3d1307. 956 NYS2d 271 fJd Dept 2012]: Hypo Holrli11gs, In c. v C/wlasani, 280 AD2d 386. 72 J YS2d 35 [JS1 Dept 200 I] ). The defendanl mortgagor, therefore, fa iled to establish the merit of the standing defenses in the answer. Accordingly, all of the affirmative defenses asserting the lack of standing and/or capacity to sue as welI as an improper ass ignment of the mortgage are dismissed. To the extent that the defendant mortgagor alleges in her opposing or moving papers that the lender committed violations of the provisions of6-1 or6-m of the Banking Law. any potential affimiative defenses based upon these grounds were waived because such were not specifically asserted in the answer (see, CPLR 3013 ; 30 18). In any event to the extent the defendant mortgagor asserts that the plaintiff violated Banking Law § 6-1, she has failed to demonstrate that the mortgage loan was a "high-cost" home loan. as the term was defined in this section as of the date of origination (see. Banking Law § 6-1 [ 1] [d]: fo rmer Banking Law § 6-l [e] [i] [L 2002, ch 626. § l, eff. April 1, 2003)). The protections against predatory lend ing found in the Home Equity Theft Prevention Act (HEPTA) (see, Real Property Law § 265-a) and Banking Law § 6-1 are not applicable in this case. The $480,000 mortgage was executed on January 27, 2007, before the February 2007 effective date of the Home Eq uity Theft Prevention Act, and the amount of the loan exceeded the then applicable $300.000 monetary limit of Banking Law § 6-1 (see, Endeavor Funding Corp. v Allen. 102 A03d 593. 958 NYS2d 300 [P1 Dept 2013]). Prior to the amendment (effectiYe October 1-J.. 2007 [L 2007. ch 552. ~ 2]) to fo rmer Banking La,,· § 6-1(e) (i) (L 2007, ch 552. § l ). mortgage loans in principal amounts exceeding $300,000.00 were not covered by the statute (see . L 2002. ch 626, § 4: Banking Law§ 6- 1; Lewis v Wells Fargo Bank, N.A., 134 AD3d 777, 22 NYS3d 46 l [2d Dept 2015]: E ndeavor Funding Corp. v A llen . l 0'.?. AD3d 593. supra: Co1111111111i(l' Preserv. Corp. 1 Sahara Real(r Dev., LLC. 201 l NY l\1isc LEXIS 734. 20 11 WL 76638-t, 2011 NY Slip Op 30..+37 [U] [ 'up Ct. Suffolk County 2011 ]; Sebroll' v Fairmont Funding, l TD .. 2011 ~y Misc LEXIS 5997. 2011 WL 6 738763. 20 I I NY Slip Op 33271 [U) [Sup Ct. Queens Count) :'.O 11 ]:.Alliance i\.Jtge. Banking Corp. 1• Dobkin . 19 Yl isc 3d 1121 [A J, 862 NYS2d 812 [Sup Ct. Nassau County 2008] ). Morco\'er. section 6-rn or the Banking Lnw was not cnacled until August 5. 2008. and it only applies to loans consummated on or af'ter September I. 2008 (set:' . Laws of 2008. Ch. 472. § 28 [c). eff. Sep. I. 2008 ]). ln response. the: defendant mortgagor failed to r:.iise a triable issue of fact. Accord ingly. the ninth aftirmati\'e defense is dismissed. 1 [* 13] Deutsche Bank :\at!. Trust Co. ,. Francis. et. al. Index No.: 5796-2013 Pg. 13 To the extent that the ek,·enrh affinnati,·e defense is based upon an alleged TILA ,·iolation. the defendant mongagor admitted in the answer that a TlL.-\ statement was gi,·en to her. but that .. [ sheJ ne,·er t\~\·ie,,·ed the [TILA] statement at the closing'' ith anyone who could explain to [her] the nature and amount of their [sic] future payments .. (.\ns\Wr t;•; 62) (St't'. HS BC Ban k USA l' Picarelli. 36 l\lisc3d 1218 [A]. supra) . Jn any C\'ent. the defendant mortgagor failed to come forward with any proof to show that any material written representat ions or disc losure made to her were in co nfl ict \Y th the terms of the note and i mortgage (see. U.S. Bank N.A. l Slm•i11ski. 78 A03d 1167. 912 NYS2d 285 [2d Dept 2010] : U.S . Bank N.A. v Pia. 73 A03d 752. 90 I l\Y 2d l 04 [2d Dept 20 l OJ). Accordingly. the ele,·enth affirmatiYe defense is dismissed. 1 With respect to the sixth counterclaim for reasonable attorneys· fees, RPL§ 282 provides that mortgage agreements affecti ng residential real property. 'vhich allow a preva iling lender to recover attorneys· fees and/or expenses in a foreclosure proceeding. read reciprocally allows a prevailing borrower co recover attorneys· fees and/or expenses in an action to enforce a mortgagee·s covenant or agreement. or upon prevailing in a defense or counterclaim in an action commenced by the mortgagee agai nst the mortgagor (see, RPL § 282; Katz v A--l iller, 120 AD3d 768. 991 NYS2d 346 [2d Dept 20 14]). The subject property is residential, but the defe ndant mortgagor makes no claim that plaintiff fa iled to perfo rm any covenant or agreement on its parl to be performed under the mortgage. In any event. the sixth counterclai m is not cognizable as pleaded (see, CPLR 3013: 3018). Therefore, the sixth counterclaim is dismissed. To the extent that defendant mortgagor moves for discovery and/or dismissal of the complaint on the grounds that the plaintiff failed to negotiate with her in good faith pursuant to CPLR 3408, the same is denied because a foreclosing plaintiff has no obligation to modify the terms of its loan before or after a default in payment (see, Bank ofAm., N.A. v Lucido, 11 4 AD3d 714, 981 ~YS2d 433 (2d Dept 2014]: Wells Fargo B ank, N.A . v Van Dyke, 101AD3d638, 958 NYS2d 331 [1st Dept 2012]; EMC J lt/tge. Corp. v Stewart, 2 AD3d 772, 769 NYS2d 408 [2d Dept 2003L United Cos. Lending Corp. v Hingos , 283 AD2d 764. 724 NYS2d 134 [3d Dept 2001]; First Fed. Sa v. Bank v Alidura, 264 AD2d 407, 694 NYS2d 121 [2d Dept 1999]). The mere fact that the plainti ff refused to consider a reduction in principal or interest rate. docs not estab lish that it was not nego ti ating in good fai th (Wells Farg o Bank, N.A . v Van Dyke. 101 AD3d 638. supra at 63 8). Further. "(n)othing in CPLR 3408 requires [the] plaintiff to make the exact offer desired by [the) defendant[] [mortgagor], and [lhe] plaintiffs failure to make that offer cannot be interpreted as a lack of good faith'. (Wells Fargo Bank, N.A . v Van Dyke, 101 AD3d 638, supra at 638). In any l.!Vent. the court finds that the totality of the circumstances in this case, do not suppo rt a findi ng that tbe plaintiff failed to negotiate in good fai th (see . Deutsche Bank N atl. Trust Co. v Twersky. 135 AD3<l 895. 24 ~YS'.2d I 93 [2d Dept 20 I 61: US Bank, N.A. vSarm ie11to . 121 AD3d I 87. 99 I l\YS2d 68 [2d Dept 20 I4): Wells Fargo Brm k, N.A. " J \.feyers. 108 AD3d 9. 966 >JYS?..d I 08 [2d Dept 20 I JI: ~·ee aim. BAC H ome Loans Servicing, LP v Al osta/a. 20 I 3 ~y .:Vfisc LEXIS 5988. 2013 WL 6846509. 2013 NY Slip Op 33199 fU] (Sup Ct. Queens County 2013. slip op. at 9) [holding that I IAMP only requirl.!s partic ipating servicers to consider eligible loans for modification but does no t require servicers to 1110dify ~ligible loans j: JP Morgan C!tase Bank, JV.A . v /lardo. 36 Mi.sc3d 359, 940 NYS2d 829 [Sup Ct 2012 1 [holding that I !AMP does not create an entitlement to modification]). The defendant mortgagor· s request for an order restoring this action to this court' s mortgage [* 14] Deutsche Bank ·arl. Trust Co.\. Francis. et. al. Index No.: 5796-2013 Pg. !.+ foreclos ure pare for an additional scttkmenc conference is denied because it is \\" ithout merit (s<.'t> . JP.lforgan Chase Bank, .\'.A v .\/a11tle. 13.+ A03d 903. supra). According to the court" s records. a settlement conference \\·as conducte<l or adjourned before this court· s specialized mongage foreclosure part on July 22. September 25 and December 2. 20 l .+. A rcpresentati,·e of the plaintiff attended and panicipateJ in the conferences. On the last date. this ac tion was marked to indicate that the parties could not reach an agreeme nt to mocliiY the loan or other\\' ise settle thi s action. Accord ingly. there has been compliance with CPL R 3·f08. and no further conferem:e is required under any statute. law or rule. In any en~nl. the defendant mortgagor failed to establish that she has a genuine interest in negotiating a trial loan modification (see. JP1 Uorga11 Chase Bank, J\·.A v Mantle. I 3.+ AD3d 903. supra: Natio11star ftftge., LLC v Saintval.' 016 NY Misc LEXIS 3657. 2016 WL 608 1860. '.2016 NY Slip Op 3 188 1 [U] [Sup Ct. Suffolk 2 County 2016]). Addi tionally. the defendant mortgagor otherwise failed to demonstrate the merits of her request for a conference by submitting any evidence ofa pending loan modification (see, Deutscll e Bank N atl. Trust Co. v. Kent, 2013 NY Misc LEX IS 4921. 2013 WL 5823056. 2013 NY Slip Op 32661 [U] [Sup Ct, Suffolk County 20 13]). The defendant mortgagor's allegations that she was holding estate funds as a fiduciary, an admission that she improperly co-mingled estate funds (see, SCPA § 719; !vlatter of Flaum v Birnbaum, 19 1AD2d227, 59..f NYS2d 247 (I si Dept 1993); Matter of Kaskmvitz. 25 Misc3d 1228 (A]. 906 NYS2d 77 1 [Sup Ct Westchester County 2009]), are insufficient to demonstrate that she was improperly denied a permanent loan modification. Further. even though the defendant mongagor alleges that she sent the plaintiffs prior servicer an executed pem1anent modification agreement. an allegation which is vigorously refuted by the plaintiff's representative, she has failed to produce a copy of same. Moreover. the defendant mortgagor is not entitled to any other court conference fo r the purpose of hav ing the plaintiff present the note. since the plaintiff has already provided a copy in accordance with CPLR 45 18 (a). Contrary to the defendant mortgagor's contentions, the instant motion for summary judgment made by the plaintiff imposed an automatic stay of discovery (see, CPLR 32 14 [b]; Sc/1iff v Sal/all Law Firm, P.C.. 128 AD3d 668. 7 NYS3d 587 [2d Dept 20 15]). In any event, the defendant mortgagor fai led to demonstrate that she made reasonable attempts to discover the facts which would give rise to a triable issue of fac t or that further discovery might lead to relevant evidence (see. CPLR 3212 [1]: Seaway Capital Corp. l ' 500 Sterliug R ealty Corp., 94 AD3d 856. 941 'YS2d 87 l [2d Dept 2012); Swedbank, AB, N. Y. Branch l ' Hale Ave. Borrower, LLC. 89 AD3d 922. 932 NYS2d 540 [2d Dept 2011 ): JP 1 \..-/org a11 Clwse Bank v Agnello, N.A .. 62 /\D3d 662. 878 NYS2d 397 [2d Dept 2009): L oan care, a Div. of FNF Servici11g, Jue. 1• Fox. 20 15 NY Misc LEXIS 27. 20 15 WL 162359, 2015 NY Sli p Op 30005 [U I [Sup Ct. Suffolk County 20 15] ). Mere hope and specu lation lhat addit iona l discovery might yield evidence suffic ient to raise a triable issue nrfoct is not a basis for denying summary judgment (l ee 1• T.F. Deft/ ilo Corp .. 29 AD3<l 867. 868. 815 YS2d 700 [2d Dept 2006): Sasso11 v Selina il-/fg. Co., fil e.. 26 AD3d 487 . .+88, 810 L'\YS2d 500 j2d Dept 20061). The branch or the dcfen<lant mortgagor"s cross motion fo r an order. ostensibly. pursuant to CPLR 3 12.+ compelling the production or certain di sco\·cr")· documents is denied because it is neither supported by an affirmation evidencing a good-faith effort made by counsel to resoh·e the issues raised therein (see . Uniform Rules for Trial Cts [22 YCRR] § 202.7 fa] : Ponce 1• J\ Jiao Ling Liu. 1:23 AD3d 787. 996 [* 15] Deutsche Bank Natl. Trust Co. v Francis. et. al. Index No.: 5796-2013 Pg. 15 l\YS2d 5-t8 [2d Dept 201-t]: Quiro:, v Beitia. 68 AD3d 957. 893 1 YS2d 70 [2d Dept 2009J: Zorn l ' Botti110. 18 ADJd 5-t5. 79-t NYS2d 659 [2d Dept 2005]). nor an order scheduling disco\'ery. In any C\'ent. this br:.inch of the c.kkndanl mortgagnr's motion has been rendered academic by the abo\'e determination. E\'en ,,·hen considered in che light favorable to the defendant mortgagor. the opposing papers are insufficient lo rai se any genuine question of fact requiring a trial on the meri ts of the plaintiffs claims for fo reclosure and sale (see. Retained Realty, In c. v Syed. 13 7 AD3d 1099. 26 NYS3d 889 [2d Dept .20 l 6] : B ank of S mithtown v 219 Sagg J \/aiu, LLC. I 07 AD3d 65 -+. 968 YS2d 95 [2d Dept 201 3] : E migrant tl!tge. Co., In c. i• Beckerman . I 05 AD3d 895. 96-t . Y 2d 5-+8 l2d Dept 2013)). The detendant mongagor's 1110\'ing and opposition papers are also insufficient to demonstrate any bona fide defenses or counterclaims (see. CPLR 32 11 (c): Wells Fargo Bank, N.A . v Ali. 122 AD3d 726, 995 NYS2d 735 [2d Dept 2014 ]; Rimbambito, LLC v L ee. 118 AD3d 690. 986 NYS2d 855 [2d Dept 2014 ); A m erican A irlines Fed. Credit Union v Mo/tam ed, 117 AD3d 97-t. 986 NYS2d 530 [2d Dept 2014]; Wasltington Afut. Bank v Scl1 e11k, 112 AD3d 615. 975 NYS2d 902 [2d Dept2013); U.S. Bank N.A. v S!a vi11ski. 78 AD3d 1167. supra; Cochran In v. Co., In c. v Jackson, 38 /\03d 704, 834 NYS2d 198 [2d Dept 2007]). The court has examined the defendant mortgagor's remaining contentions and finds that such lack merit. Notably. the answering defendant did not deny havi ng received the loan proceeds and having defaulted on the subj ect loan payments in an affidavit made by her (see, Citibank, N.A . v Souto Geffen Co.. 231 AD2d 466, 647 NYS2d 467 [Jst Dept 1996]; see also, Stem v S tem , 87 AD2d 887, 449 NYS2d 534 [2d Dept 1982)). In any event. the affirmation of the defendant mortgagor's attorney, who has no personal knowledge of the operative facts. is without probati ve value and insufficient to defeat the motion (see, J Hatter ofZ iomek , 40 AD3d 774. 833 NYS2d 906 [2d Dept 2007] ; Barcov H olding Corp. v Bexi11 Realty Corp. , 16 AD3d 282, 792 NYS2d 408 [ ! 51 Dept 2005); see also, US Natl. Bank A ssn. v Melton, 90 A03d 742. 934 NYS2d 352 (2d Dept 20 11]). The plaintiff is therefore awarded partial summary judgment in its favor as indicated above (see, Federal H ome L oan Mtge. Corp. v Karastat/1is, 237 AD2d 558. supra). Except for the first affirmative defense. wherein the defendant mortgagor asserts the failure to state of cause of action. the remaining affirmative defonscs asserted in the answer ure dismissed. Al l of the counterclaims are dismissed in Lheir entirety. The court next turns to tht: ancillary relief in the plaintiffs motion. The branch o r the instant motion for an order pursuant to CPLR 1024 amending the captio n by Dona\'On Hinds. George Francis. Sanjay Francis. Robert Wi ll iams and Vincent McAnuss fo r the fictitious ··JOHN DOE# 1-s·· defendants. and b\' excisina the fictitious "JOI-ft\T DOE #6-1 O"' is ... eranted (see. PHH . 1 lltge. Corp. v Davis. 111 AD3d 1110, 975 1 YS2d -+80 f3d Dept 2013]: Neigh bor/rood Hous. Servs. of N. Y. Cio•, In c. 1• 1 lfeltzer. 67 AD3d 872. 889 NYS2d 617 [2d Dept 2009]). By its submissions. the pl ai nti ff establ ished the basis for the above-noted relief. All future proceedings shall be captioned accordingly. ~ By its mo\'ing papers. the plaintiff estublishcd the default in answering on the part of the defendants Dona\·on Hinds. George Francis. Sanjay Francis. Robert Williams and Vi ncent McAnuss (see, RPAPL ~ 132 I; I/S BC Bank USA, N.A . v A lexander. 124 /\D3d 838. 4 NYS3d 4 7 [2d Dept 2015 ]: Wells Fargo Bank, NA v A m bro:,-01•. 120 AD3 d 1~25. 993 NYS2d 322 [2d Dept 201-t J; U.S. Bank , N.A. v Razon , 115 AD3d 739. 981NYS2d571 (2d Dept 201 -t]: HSBC Bank USA . J\'.A. v Rolda11 . 80 A03d 566. 914 . YS2d [* 16] Deutsche Bank 1 at!. Trust Co. '" Francis. et. al. Index No .: 5796-2013 Pg. 16 6-+ 7 [2d DC"pt 2011 l ). A.ccordingly. the default in <HlS\\ering ofall of the non-answering defendants is fi:\t!d and determined. Because the plaintiff has been mrnrded summary judgment against the defendant mortgagor and has established the default in ansm~ ring by the remaining defendants, the plaintiff is entitled to an order appointing a rct'er('C to compute amo unts due under the subject note and mortgagl: (see, RPAPL ~ 1321: Green Tree Sen•iciug, LLC v Cm:r. I 06 AD3d 691 . 965 ~YS::Zd 511 l2d Dept 2013]: Ocwe11 Fed. Bauk FSB i• illiller. 18 AD3d 527. 79.+ NYS::Zd 650 (2d Dept 2005]: Vermont Fed. Bank v Cltase. 226 /\D::Zd I 03-L 6.+ I NYS::Zd .+.+O [3d Dept 1996]: Bank of£. Asia v Smith , 201 AD::Zd 522, 607 NYS2d -+31 [2d Dept 199-t]). Those portions of the instant motion wherein the plaintiff demands such relief are thus granted. _ _ FINAL DISPOSITION -""""X_ NON-FINAL DISPOSITION

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