Bank of Am., NA v Jaklitsch

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Bank of Am., NA v Jaklitsch 2018 NY Slip Op 30826(U) May 3, 2018 Supreme Court, Suffolk County Docket Number: 022372-2009 Judge: James Hudson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER INDEX NO. 0223~0 PY SUPREME COURT OF THE ST ATE OF NEW YORK I.A.S PAI~T 40 - SUFFOLK COUNTY PRESENT: Hon. JAMES HUDSON _ _ _ _ __ ___________ _ _ _ x BANK OF AMERICA, NA, MOTION DATE: 12-20-16 ADJ. DATE: 1-17-17 Mot. Seq. # 004 -MotD Plaintiff, KNUCKLES, KOMOSINSKI & MANFRO Attorneys for Plaintiff 565 Taxter Road, S uite 590 Elmsford, NY 10523 -against- FRANK JAKLITSCH; LORRAINE A. .JAKLITSCH; FRANK .JAKLITSCH - MORTGAGOR'S FATHER; LLOYDHAVENDRIVECORP.;NEWYORKSTATE DEPARTMENT OF T AXATION AND FINANCE; WASHINGTON MUTUAL BANK FA; VALLEY NATIONAL BANK; '\JOHN DOES" and ".JANE DOES" said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien against the premises, ROBERT VADNAIS, P.C. Attorney for Defendant Frank Jaklitsch 315 Walt Whitman Road, Suite 215 Huntington Station, NY 11746 Defcndants. ~~~~~~~~~~~~~~~~~~~~~x Upon the reading and filing of the following papers in this matter: ( I) Notice of Motion by the plaintiff, dated November 22. 2016, and supporting papers (including memorandum of law dated November 22, 2016); (2) Affirmation in Opposition by lhe defendant Frank Jaklitsch 's counsel, Robert Vadnais. Esq., dated January 3, 2017, and supporting papers; (3) Reply by the plaintifrs counsel, Loretta Carthy, Esq., dated January 13. 2017. and supporting papers; (1md af!e1 hcn1 iug cmmsels' ora l a1gu111e11ts i11 suppo1t of1111d opposed to tlic 111otio11): and now it is ORDERED that this motion (#004) by the plaintiff for, inter alia, an order awarding summary judgment in its favor and against defendant Frank Laklitsch, striking his answer and dismissing the affirmative defenses set forth therein; fixing the defaults of the non-answering defendants; appointing a referee; and amending the caption is granted solely to the extent stated below, otherwise denied wi th leave to renew within 120 days of the date herein. or, in the alternative, the filing of a note of issue within 120 clays of the date herein; and it is ORDERED that the plaintiff is awarded partial summary judgment dismissing all of the affirmative defenses asserted in defendant Frank Jaklitsch 's answer. with prejudice, except for the portion of the ninth atlirmative defense, alleging a fai lure to satisfy a condition precedent (notice of default) and a failure to comply with the notice requirements of RPAPL 1303 and 1304; and it is [* 2] Bank of America. N.A. v Jaklitsch, et.al. Index No.: 022372-2009 Pg. 2 ORDERED that the caption is amended by substituting Wilmington Savings Fund Society, FSB doing business as Christiana Trust. not its individual capacity, but solely as trustee for BCA T 2015-13 BTT as the property party plaintiff: substituting Dalton .J akitson for the fict itious ·'JOHN DOES'' defendants. and by excising the remaining fictitious ·'JANE DOrS' defendants. along with the remaining descriptive wording relating thereto: and it is ORDERED that the plaintiff shall serve a copy of this order amending the caption upon the Calendar Clerk of this Court: and it is ORDERED that the plaintiff shall serve a copy of this order upon the Calendar Clerk for IAS Part 39 notifying said Part thnt Action No. 2/ Index No.: 12387/20 I0 was previous ly consolidated with this action by order dated March 24. 20 14 (Martin, J .): and it is further ORDERED that the plaintiff shall serve a copy of this order with notice of entry by first -class mail upon counsel for the answering defendant and all other parties, if any. who have appeared herein and not waived further notice within thirty (30) days of the date of this order, and it shall promptly file the affidavit(s) of service with the Clerk of the Court. This is an action to foreclose a mortgage on certain real property known and described as 11 Lloyd 1laven Drive, Huntington. New York I 1743. The de fondant Frank Jak Iitsch ("the defendant mortgagor'') alleged ly defaulted on a consolidated note and consolidation, extension and mod ifi cntion agreement ('the CEMA") dated August 2, 2005, by fail ing to make the:: monthly payment of principa l and interest due on or about November 1, 2008. and each month thereatler. After the defendant mortgagor allegedly failed to cure the default in payment. plaintiff commenced this action by the filing of the lis pendens, summons and complaint on July I 0, 2009. Issue was joined by the interposition of the defendant mortgagor's answer, with an attached verification sworn to on October 27, 2014. The remaining defendants have neither answered nor appeared herein. By way of fu rther background, this action was transferred from the inventory of the Honorable Daniel Martin, J.S.C. to this !AS Part upon Justice Martin's retirement in 2017. The p lai ntiff now mov1;:s for. inter alia. an order: (I) pursuant to CPLR 3212 awardi ng summary j udgment in its favor against the defendant mo1tgagor. striking his answer and dismissing the affim1ative ddcnses asse11ed therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants: (3) pursuant to RP APL* 1321 appointing a referee to (a) compute amounts due under the subject mortgage: and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) anlending the caption. In support of the motion, the plaintiff submitted, inter alia, the pleadings; the consolidated note, the consolidated mortgage, the CEMA and the assignments: affidavits of service; the affi rmation from its counsel, Loretta Carthy. Esq .; the affidavit in support from Lucy Babik, a Contested Foreclosure Special isl of Selene Finance LP. attorney-in-fact and servicer for Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its individual capacity, but solely as trustee for BCA T 20 l 4-12TT (''Wilmington .. ): the affidavit of merit from Ceedra D. Allen. a Vice President of the plaintiff; and th«! [* 3] Bank of America, N.A. v Jaklitsch, et.al. Index No.: 0223 72-2009 Pg. 3 affidavit from Margaret Dalton, another Vice President of the plaintiff. In opposition to the motion, the defendant mortgagor submits the affirmation of his counsel , Robert Vadnais, Esq . In his opposition papers, the defendant mortgagor reasserts that part of his previously pleaded ninth affirmative defense which alleges the plaintiffs failure satisfy a condition precedent to the tiling of this action as well as his eleventh at1irmative defense asse11ing the plaintiff's lack of standing. The defendant mortgagor also asserts that the plaintiff failed to send him additional notice pursuant to CPLR 3215(g)(3)(ii i), and he now attempts to assert an unpleaded defense alleging a vio lation of R.PAPL 130 I. More specifically, the defendant mortgagor contends that the plaintiff submitted insufficient proof of mailing of the notice of default. In reply to the opposition and in further support of the motion. the plaintiff submitted, among other things. an aflirmation of its counsel. Ms. Carthy. The court turns first to the issue of the p laintiffs compliance with certain conditions precedent to this action. With respect to RPAPL 1303, the plaintiff's moving papers contain insufficient proof that the notice served upon the defendant mortgagor was in the proper fom1 (cf. . Nationstar Mtge., LLC i• Kami/, 155 /\D3d 968, 63 NYS3d 890 [2d Dept 2017]; PHH Mtge. Corp. v Israel, 120 AD3d 1329, 992 NYS2d 355 (2d Dept 2014]; U.S. Bank N.A . v Tate, I 02 AD3d 859, 958 NYS2d 722 [2d Dept 2013]). Even though the plaintiff's submissions include an affidavit of service of the RP APL 1303 notice upon the defendant mortgagor, the affidavit contains insufficient facts as to compliance and the affirmation of counsel is devoid of any statements as to compliance with the form. type size, type fa<.:e, paper color and content requirements of RPAPL 1303. For foreclosure actions commenced on or after September I, 2008, RP APL 1304 requires that, with regard to a "high-cost home loan," a ··subprime home loan" or a ''non-traditional home loan," at least 90 days before a lender or mortgage loan servicer commences legal action against the borrower, the lender or mortgage loan servicer must give the borrower a speci fie statutorily prescribed notice (see, L 2008, ch 4 72, § 2; cf, L 2009, ch 507). In essence, the notice warns the bonower that he or she may lose his or her home because of the loan default, and provides information regarding assistance for homeowners who are facing financial difficulty. The specific language and type-size requirements of the notice are set forth in RP APL 1304(1). When initially enacted, RP APL 1304 applied only to "high-cost." "subprime," and "non-traditional" home loans, terms which were defined in subdivision (5) (see, L 2008, ch 472, § 2: Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, I 05, 923 NYS2d 609 [2d Dept 2011]: Wilmi11gto11 Trust Co. v Hurtado. 48 Misc3d 120 I [A], 18 NYS3d 582 [Sup Ct. Suffolk County 2015]) . Subsequently, RP APL 1304 was amended, effective January 14, 2010, to take its current form. by deleting all references to high-cost, subprime, and non-traditional home loans (L 2009, ch 507, § l-a; Aurora Loa11 Servs., LLC v Weisblum, 85 AD3d 95. supra at 105). In its current form. RPAPL 1304 is applicable to any "home loan." as defined in subdivision (5) (a) of that section. At the outset. the plaintiff submitted insufficient evidentiary proof as to whether the subject loan is a "high-cost," "subprime," and "non-traditional" home loan , or even a "home loan," and thus subject to the notice provisions of RPAPL 1304 at the time of commencement (see, L 2008 , ch 472 , § 2; former RP APL 1304 [5][B][i]; US Bank N.A. v Richard, 151 AD3d l 001, 57 NYS3d 509 [2d Dept 2017]; US [* 4] Bank of America, N.A. v Jaklitsch, et.al. Index No.: 022372-2009 Pg.4 Bank N.A. v Caronna, 92 AD3d 865. 938 NYS2d 809 [2d Dept 2012]; HSBC Bank USA v Sarttbel/a, 2018 NY Misc LEXIS 11 22, 2018 WL 1675727, 2018 NY Slip Op 30548 lU] [Sup Ct. Suffolk County 2018) [plaintiff furnished information on Fannie Mac web site as to conforming Joan limits and requested court to take judicial notice of same, on notice to defendant] ; Ng v HSBC Mtge Corp., 20 l 0 WL 889256 lEDNY 2010] [size of the loan limit determined by number of dwelling units and conforming loan size limit at the time of mortgage for a comparable dwelling]; cf . Wells Fargo Bank, N.A. v Emmet. 2009 NY Misc LEXIS 5078, 2009 WL 3793455, 2009NY Slip Op 32509 [U][Sup Ct, Suffolk County 2009][exhibit entitled "Historical Conventional Loan Limits" not in evidentiary form , and even if it were, no evidentiary proof that such "Conventional Loan Limits" equate to the "conforming loan size" referred to in the statute by way of an affidavit from one with personal knowl edge]). Because this action \·vas commenced on July J 0, 2009, the provisions of RP APL 1304 would apply only if the loan was defined as a "home loan'' as well as either a "high-cost," a "subprime," or "non-traditional" home loan (see , L 2008. ch 472, § 2). In the plaintiff's moving papers. there are no allegations by way ofan affidavit from one with personal knowledge as to whether the loan whether the loan meets the definition of any of these aforementioned categories. The plaintiff now alleges, however, that it complied with the notice provisions of RP APL 1304, without any explanation as to why it was required to do so. Parenthetically, even though the mortgages and the CEMA specit~v that the property is a "one or two family dwelling only," there are no sworn statements from a representative of the plaintiff or its servicer as to whether the property is improved by a one or two family residence, and the court notes that none of the loan instruments bear a legend that they are single familyFannie Mae/Freddie Mac uniform instruments . Thus, the court is left in the untenable position of having to guess whether the notice provisions of RP APL 1304, as origina.lly enacted, apply herein. lf required, the plaintiffs submissions are insufficient to demonstrate evidentiary proof of proper service of the 90-day pre-foreclosure notice upon the defendant mortgagor (see , Cen/ar, FSB v Weisz, 136 AD3d 855, 25 NYS3d 308 [2d Dept 2016]; Bank ofN. Y. Mellon v Aquino, 131 A03d I I 86, 16 NYS3d 770 (2d Dept 2015]; Wells Fargo Bank, NA v Burke, 125 AD3d 765, 5 NYS3d 107 [2d Dept 20 I 5]). The plaintiff submitted neither an affidavit of service of the 90-day notice upon the defondant mortgagor, nor an affidavit from one with personal knowledge of the alleged mailings by regular and certified mail as well as familiarity with the sender's mailing practices and procedures (see, Citibank, N.A . v Wood, 150 AD3d 813. 55 NYS3d 109 [2d Dept 20 17] [plaintiffs submissions devoid of proof of a standard office mailing procedure or an independent proof of the actual mailing] ; CitiMortgage, In c. v Pappas , 147 AD3d 900, 47 NYS3d 4 15 [2d Dept 2017] [plaintiffs representative did not allege that he was familiar with the plaintiffs mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed] ; JPJ l1org(llt Chase Bank, N.A. v Kutch, 142 AD3d 536, 36 NYS3d 235 [2d Dept 2016] [affidavit insufficient to establish RP APL 1304 compliance where no showing of personal knowledge of procedures customarily used in ordinary course of business for mailing of statutory noticesl; Deutsche Bank Nat. Trust Co. v Bertini, 2018 NY Misc. LEXIS 616, 2018 WL 1072 I07. 2018 NY Slip Op. 30305 [U] [Sup Ct, Suffolk County 2018] [plaintiffs submissions devoid of proofof a standard office ma iii ng procedure or any independent proof of actual mailing]; cf, F/agstar B1111k, FSB v Mendoza. 139 AD3d 898, 32 NYS3d 278 [2d Dept 2016] [affidavit describing the sender's standard business practice]; Wells Fargo Bank, JV.A. i• Moza , 129 AD3d 946, 13 NYS3d 127 [2d Dept 2015] [affidavit of mailing and certified mailing receipts]). [* 5] Bank of America. N.A. v Jaklitsch, et.al. Index No.: 022372-2009 Pg. 5 The conclusory statements set forth in the affidavit of Ms. Babik that the derendant mortgagor was sent 90-day pre-foreclosure notices. even when combined with copies ol"certain submi tted documentation, arc insufficient to meet the requirements oft he statute (see, Wells Fargo Bank, N.A. v Trupia . 150 A03d 1049, 55 NYS3d 134 [2d Dept 2017]: JP1 '4orga11 Chllse Bank, N.A. v Kutch . 142 AD3d 536, supra). Even though Ms. Babik alleges that 90-day notices were ..sent." she did not set forth sufficient facts as to how or when compliance was accomplished. Ms. Babib also did not state that she served the notices: nor did she identify the individual(s) who allegedly did so. Further, it is noted that Ms. Sabik's affidavit does not constitute sufficient proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed by certified mail and by first class mail (see. Nocella v Fort Dearborn Life Ins. Co. ofN.Y., 99 AD3d 877, 955 NYS2d 70 [2d Dept 2012]; cf, Pref erred M11t. Ins. Co. v D01111elly, 11 1 AD3cl 1242, 974 NYS2d 682 f4111 Dept 20 l 3]; Residential Holding Corp. ,, Scottsdale Ins. Co .. 286 J\D2d 679, 729 NYS2d 776 [2d Dept 200 I]). Turning to the default notice provisions in the consolidated mortgage. the plaintiff fai led to submit surficient evidence that the defendant mortgagor was served with a 30-day notice of default prior to demanding payment of the loan in full (see. US Bank N.A. v S i11g lt, 147 J\D3d I 007. 47 NYS3d 439 [2d Dept 2017]; Nationstar M tge., LLC v Dimura. 127 AD3d 1152. 7 NYS3 d 573 [2d Dept 2015]; HSB C Mtge. Corporation (USA) v Gerber. I 00 AD3d 966, 955 NYS2d 131 [2d Dept2012j: cf. Wachovia Bank, N.A. v Carcano. 106 AD3d 724. 965 NYS2d 516 l2d Dept 2013] [compliance with 90-day notice! requi rements satisfies the 30-day defau lt notice requirement in the mortgage]; 011ewe.st Bank, N.A. v Rosado, 2016 US Dist LEXIS 74422, 20 16 WL 3 198305 [SDNY 2016][notice of default substantial ly compli ed with ten11s of mortgage]). In this case, the plaintiff's representative did not al lege that she is fa miliar with the standard mailing practices or procedures of the prior servicer, and that those practices or procedures were followed in this instance. Nor did the plaintiff submit any other proof of proper mailing such as proof of mailing from the United States Postal Service, combined with an authenticated business ledger, or an atlidavit of service. Where, as here. an answer served includes the defense of standing. the plaintiff must prove its standing in order to be entitled to relief (see, CitiMortgage, fil e. v Rosenthal, 88 J\03d 759, 931 NYS2d 638 [2d Dept 20 11 ]). The standing of a plaint iff in a mortgage foreclosure action is measured by its ownership. holder status or possession of the note and mortgage at the time of the commencemen t of the action (see. Bank of N. Y. v S ilverberg. 86 AD3d 274. 926 NYS2d 532 [2d Dept 20 I 11: U. S. Bank, N.A. vColly m ore. 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009J). Further. in the Second Department. capacity to sue and standing are distinct legal concepts (see. Wells Fargo Bank M inn., N.A. v J l-fastropaolo. 42 A03d 239, 837 NYS2d 247 f1d Dept 20071). By its submissions, the plaintiffdemonstrated its standing by way of physical possession of the note prior to commencement (see. A urora loan S er vs., LLC v Taylor, 25 NY3d 355. 12 NYS3d 6 12 (2015]; Betit page Fed. Credit Union v Caserta, 154 ADJd 69 1. 61 NYS3d 645 [2d Dept 20 17); HSBC Bank USA , N.A. v A rmijos. 151 AD3d 943. 57 NYS3d 205 (2d Dept 2017]; Silverg ate Bank v Calkula Props., In c., 150 A03d 1295. 56 NYS3d 189 (2d Dept 2017]; Kon daur Capital Corp. v M cCary, 115 AD3d 649, 981 NYS2d 547 [2d Dept 2014]: Deutsch e Bank Natl. Trust Co. v Whalen, 107 J\D3d 931, 969 NYS2d 82 [2d Dept 2013]). In her affidavit, Ms. Babik alleges that the plaintiff as holder, or its agent, had physical possession of the original consolidated note on April 15, 2009, a date being prior to commencement, and [* 6] Bank of America, N .A. v Jak litsch, et.al. Index No.: 022372-2009 Pg.6 that the plaintiff remained in continual possession of the note until delivery of same to Wilmington, or its agent. In rendering her affidavit, Ms. Babik alleges that her determ ination as to standing is based upon, among other things, the business records relating to the servicing of the loan, her review of the loan documents, ·'vault document management'" and correspondence. To the extent that the servicing records were created by a prior servicer, those records were ·'integrated and boarded" into Selene 's systems and are now part of Selene's servicing records. It is the regular business practice of Selene to integrate the prior servicer·s servicing records into Selene's servicing records. and to rely on the accuracy of those boarded servicing records in providing its servicing loan functions. Ms. Babik further alleges that she is familiar with how each document attached to the moving papers was retrieved and compiled, and has personally reviewed each document attached to the plaintiffs moving papers. Moreover, Ms. Dalton, another Vice President of the plaintiff, a lleges that ··the loan was acquired and in the possess.ion of the [p ]laintiff on Apri l 15, 2009.'' ln any event, the plaintiff demonstrated its standing by, inter a li a, the submission of the written assignments of the mortgages and the notes executed prior to com mencement (see. U.S. Bank N.A. v A kande, 136 AD3d 887, 26 NYS3d 164 [2d Dept 2016]: Kondaur Capital Corp. v McCary, 11 5 AD3d 649, 98 l NYS2d 547 [2d Dept 20 14]: Clwse Home Fin. , LLC v Miciotf(l , 101 AD3d 1307, 956 NYS2d 271 [3d Dept 2012]: GRP Lo""' LLC v Taylor, 95 AD3d 1172, 945 NYS2d 336 [2d Dept 20 12]). ln this case, the assignments include references lo the promissory notes and/or indebtedness and/or beneficial interest in the notes (see, Chase Home Fin., LLC v Miciotta , I0 l AD3d 1307. supra: see also. Wasltington Mui. Bank v N ussen , 138 AD3d 828, 29 NYS3d 522 [2d Dept 20 16]; JP Morgan Chase Bank, N.A. v Schott, 130 AD3d 875 , 15 NYS3d 359 [2d Dept 20 15): JP Morga11 Chase Bank, N.A. v Russo, 12 1AD3d 1048, 996 NYS2d 68 (2d Dept 2014] [Washington Mutual Bank, FA's receivership by the FDIC, and loan acquisition by JP Morgan Cha5e Bank, N.A.]). The plainti ff also demonstrated the defendant mortgagor's default in payment (see, Ba11k of Am., N.A. v Cudjoe, 157 AD3d 653, 69 NYS3d I0 1 [2d Dept 2018]; Emigrant Bank v ft-farando , 143 AD3d 856. 39 NYS3d 83 [2d Dept 20 16); Emigrant F1111ding Corp. v Agard, I 2 1 AD3d 935, 995 NYS2d 154 [2d Dept 2014]). The affidavits of the plaintiffs representati ves, combined with the plaintiff's other submissions sufficiently show that the loan has been in default since November 1, 2008. In the fi fth affirmative defense, the defendant mortgagor alleges the lack of personal jurisdiction over him. By its subm issions, the plaintiff demonstrated that it obtained personal jurisdiction over the defendant mortgagor (see , Scarano v Scarano , 63 AD3d 716, 880 NYS2d 682 [2d Dept 2009] [process server's sworn affidavit of service is prima facie evidence of proper service]) . In a ny event, such defense was waived as the defendant mortgagor failed to move to dismiss the complaint insofar as asserted against him on this ground within 60 days after serving the answer (see, CPLR 3211 [e]; Putnam County Sav. Bank vMastrantone, 111 AD3d914, 975 NYS2d 684 [2d Oept2013] ; Reyes vA/bertson , 62 AD3d 855, 878 NYS2d 623 [2d Dept 2009]: Dimond v Verdon, 5 AD3d 718, 773 NYS2d 603 [2d Dept 2004)). The plaintiff submitted sufficient proof to establish. prima faeie , that the remaining affirmative defenses set forth in the answer are subject to dismissal due to their unmeritorious nature (see . Becher v Feller, 64 AD3d 672, 884 NYS2d 83 (2d Dept 2009): Wells Fargo Bank Minn .• N.A. v Perez, 4 1 AD3d 590, 837 NYS2d 877 [2d Dept 2007); Coppa v Fabozzi, 5 AD3d 718, 773 NYS2d 604 [2d Dept 2004] [* 7] Bank of /\merica. N.A. v Jaklitsch, et.al. Index No.: 022372-2009 Pg. 7 [unsupported anirmative defenses arc lacking in merit]; see a/.w. Emigrant Mtge. Co., Inc. v Fitzpatrick. 95 AD3d 1169. 945 NYS2d 697 [2d Dept 2012J lan aftim1ative defense asserting violations of General Business Law* 349 and/or engagement in deceptive business practices lacks merit where. inter alia. clearly written loan documents describe the terms of the loan l: CFSC Capital Corp. XXVJI v Bachman Mech. Sheet Metal Co .. 247 AD2d 502, 669 NYS2d 329 [2d Dept 1998] Ia n affirmative defense based upo n the notion of cu lpable conduct is unavai lable in a fo reclosure action]; Connecticut Natl. Bank v Peach lake Plaza. 204 AD2d 909, 612 NYS2d 494 (3d Dept 1994 J[defense based upon the doctrine of unclean hands lacks merit where a defendant fails to come forward with admissible evidence of showing immoral or unconscionable behavior]). Further. RP APL 1306 is inapplicable because it became effective after the commencement of this action (see, L 2009, ch 507, ~ 5. eff Feb 13. 20 I0). The court notes that several the asserted <lffirmative defenses asserted in the answer contain compound, boilerplate defenses in contravention of the civil practice rules (see. CPLR 3014: Scholastic Inc. v Pace Plumbing Corp .. 129 AD3d 75, 8 NYSJd 143 [1" Dept 20 15]). or lt was thus incumbent upon the defendant mortgagor to submit proof sufficient to raise a genuine question of fact rebutting plaintiff's prim a facie showing as to the default in payment or in support of the affirmative defenses asserted in the answer (see, Grogg v South Rd. Assoc., LP, 74 AD3d 1021. 907 NYS2d 22 [2d Dept 20 I OJ; Washington Mut. Bank, F.A. v O'Co11nor, 63 AD3d 832, 880 NYS2d 696 l2d Dept2009l; JP Morgan Chase Bank, N.A. vAg11el/o, 62 AD3d 662, 878 NYS2d 397 [2d Dept 2009J). ln instances where a defendant fails to oppose a motion for summary judgment. the facts, as alleged in the moving papers. may be deemed admitted and there is. in effect. a concession that no question of fact exists (see, Kuehne & Nagel v Baiden . 36 NY2d 539, 369 NYS2d 667 [1975]: see also; Argent Mtge. Co., LLC v Me11tesn11a. 79 AD3d 1079, 915 NYS2d 591 [2d Dept 201 OJ). Additionally, "uncontradicted facts arc deemed admitted'' ( Tortorello v Carli11, 260 AD2d 201. 206. 688 NYS2d 64 [ 151 Dept 1999] [internal quotation marks and citations omitted]). In opposition to the motion. the defendant mortgagor has offered no proof o r arguments in support of any of the pleaded defenses asserted in the answer, except those noted above. The failure by the defendant mortgagor to raise and/or assert each of the remaining pleaded defenses in opposition to the plaintiffs motion warrants the d ismissal of same as abandoned under the case authorities cited above (see, Kuelzne & N agel v Baide11, 36 NY2d 539. supra: see also: Argent M1ge. Co., LLC v Me11tesa 11a, 79 AD3d I 079. supra). All of the unsupported affirmative defenses asserted in the answer are thus dismissed. Rejected as unmeritorious a re the defendant mortgagor's challenges to the sufficiency of the proof upon which the plaintiff relies to support its motion for summary judgment. Contrary to the defendant mortgagor's contentions, the affidavi ts of the plaintiff's representatives s ubmitted in support of the motion are legally sufficient and comport with the requirements ofCPLR 3212 (see, Citigroup v Kopelowitz , 147 AD3d 1014. 48 YS3d 223 r2d Dept 2017]; North A m. Sav. Bank, FSB v Esposito-Como, 141 AD3d 706. 35 YS3d 491 [2d Dept 2016]; RBS Citizens, N.A. v Galperi11 , 135 AD3d 735. 23 NYS3d 307 l2d Dept 2016]: see also. Deutsche Ba11k N atl. Trust Co. v Monica, 131 AD3d 737. 15 NYS3d 863 [3d Dept 201 S][personal knowledge of the maker's business practices and procedures, or records provided by the maker were incorporated int o the recipient" s own records or routinely re lied upon by the rec ipient in its busi ness]). Further, the contents of the affidavits submitted in support of the motion are based upon their personal knowledge of the business records of the plaintiff and/or its current and prior servicer's relating [* 8] Bank of America, N.A. v Jaklitsch, et.al. Index No.: 022372-2009 Pg. 8 to the loan as well as their own knowledge as to how these records are kept and maintained (see. US Bank N. A. v Ehrenfeld, 144 AD3d 893, 41 NYS3d 269 [2d Dept 2016]; U.S. Bank N.A. v Carey. 137 AD3d 894, 28 NYS3d 68 (2d Dept 2016]; see, Deutsche Bauk Natl. Trust Co. v Mo11ica, 131 AD3d 737, supra). The plaintiff demonstrated its standing, as indicated above. ln response, the defendant mortgagor has not come forward with any evidence to raise a triable issue of fact as to plaintiffs standing, or the validity of the assignments (see, JPMorgan Chase Bank, N.A. v Weinberger , 142 AD3d 643 , 37 NYS3d 286 [2d Dept 2016]; Wells Fargo Bank, N.A. v Clrnrlaff, 134 AD3d I 099, 24 NYS3d 317 f2d Dept 2015): LNV Corp. v Francois, 134 AD3d 1071, 22 NYS 3d 543 [2d Dept 2015)). Accordingly. all of the affirmative defenses asserting the lack of standing and/or the lack of capacity to sue are dismissed in their entirety. The defendant mortgagor' s contentions that the plaintiff has violated the provisions of RP APL 130 1 are without merit (see, Aurora Loan Servs., LLC v Lopa, 88 AD3d 929. 932 NYS2d 496 [2d Dept 2011] [prayer for a deficiency judgment in a foreclosure complaint does not constitute a separate action for a money judgment in violation of the election of remedies doctrine]). The complaint demands, inter alia. foreclosure and sale and a deficiency judgment: it does not include a separate cause of action for recovery on the guarantee of the first note. In any event, because the defendant mortgagor did not make a preanswer motion to dismiss on this ground, he waived this purported defense (see. CPLR 3018[b]; CPLR 3211 [a][e]; see also. New York Commercial Bank v. J. Realty F Rockaway, Ltd. , I 08 AD3d 756. 969 NYS2d 796 [2d Dept 2013]; First Nationwide Bank v Brookhaven Realty Assoc., 223 AD2d 618, 637 NYS2d 418 [2d Dept 1996]). The detendant mortgagor's argument that the plaintiff failed to comply with CPLR 3215(g)(3) by not sending him additional notice lacks merit because he has answered the complaint (see , CPLR 3215: Bono v DuBois, 121 AD3d 932, 995 NYS2d 153 (2d Dept 2014]). The defendant mortgagor's remaining contentions have been examined and found to be without merit. In any event, as provided for by section .. V" of the CEMA. the defendant mortgagor validly waived any right of set ofl~ counterclaims or defenses to any of the obligations of the consolidated note and mortgage under the express terms of the CEMA (see, KeyBa11k N.A. v Clwpmm1 Steamer Collective, LLC, 117 AD3d 991. 986 NYS2d 598 [2d Dept 2014); B<lron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793, 946 NYS2d 61 l f2d Dept 2012); Petra CRE CDO 2007-1, Lid v 160 Jamaica Owners, LLC, 73 AD3d 883, 904 NYS2d 699 [2d Dept 2010]; Parasram v DeCambre, 247 AD2d 283, 668 NYS2d 454 [1 '1 Dept 1998]). Such waivers are enforceable as they do not contravene the public policy of this State (see, Chemical Bank N. Y. Trust Co. v Batter, 31 AD2d 802, 297 NYS2d 363 [1 s l Dept 1969]). Notably. the defendant mortgagor did not deny having received the loan proceeds and having defaulted on the subject loan payments in an affidavit made by him in opposition to the motion (see, Citibank, N.A. v Souto Ge.ffe11 Co., 23 1 AD2d 466, 647 NYS2d 467 (1 ' 1 Dept 1996]; .see also. Stem v Stem, 87 AD2d 887, 449 NYS2d 534 [2d Dept 1982)). Jn any event, the affinnation of the defendant mortgagor' s attorney, who has no personal knowledge of the operative facts, is without probative value and insufficient to raise a triable issue of fact as to the demonstrated default in payment (see , ft.fafter ofZiomek, 40 AD3d 774, 833 NYS2d 906 [2d Dept 2007]; Barcov Holding Corp. v Bexin Realty Corp., 16 ADJd 1 282, 792 NYS2d 408 [I ' Dept 2005]; see also, US Natl. Bank Assn. v Melton, 90 AD3d 742, 934 NYS2d [* 9] Rank of America. N.A. v .laklitsch, et.al. Index No.: 022372-2009 Pg.9 352 [2d Dept 2011 ]). The plaintiff is therefore awarded partial summary judgment in its favor dismissing all of th~ affirmative defenses asserted in defondant Frank .laklitsch 's answer, with prejudice, except for the portion or the ninth affirmative defense alleging a failure to satisfy a condition precedent (notice of default), and a failure to comply with the notice requirements of RP APL 1303 and 1304 (see. Emigra11t Bank v Myers. 147 AD3d 1027. -f7 NYS3d 446 (2d Dept 2017) [unmeritorious affinnative defenses dismissed]: U.S. Bank N.A. v Pia. 73 AD3d 752, 901 NYS2d 104 (2d Dept 2010] [dismissing defenses based upon unsupported allegations of violations ofTILA and GBL 349 j). The coun next turns to the ancillary relief in plaintiffs motion. * The branch of the motion for an order amending the caption. by substituting Dalton Jakitson for the fictitious ·'JOHN DOt::S" defendants, and by excising the remaining fictitious "JANE DOES" de fondants. is granted (see. CPLR 1024; PHH Mtge. Corp. v Davis, 111 AD3d 1110, 975 NYS2d 480 f3d Dept 2013]: Neighborhood Hous. Servs. of N. Y. City, Inc. v Meltzer, 67 AD3d 872. 889 NYS2d 627 (2d Dept 2009]). The branch of the motion for an order substituting Wilmington for the plaintiff in this action is also granted (see, CPLR I 018: I 021; 3025[b]; Citibank, N.A. v Van Brunt Props., LLC, 95 /\D3d 1158. 945 NYS2d 330 [2d Dept 20121). By its submissions. the plaintiff established the basis for the above-noted relief. All future proceedings shall be captioned accordingly. By its moving papers. the plaintiffestablished the defoult in answering on the part of the defendants Lorraine Jaklitsch, Frank .laklitsch-Mortgagor"s Father. Lloyd Haven Drive Corp., New York State Department of Taxation and Finance, Washington Mutual Bank, FA. Valley National Bank and Dalton Jakitson (see, RP APL§ 1321: HSBC Bank USA, N.A. vA/exander. 124 A03d 838. 4 NYS3d47 [2d Ocpt 2015]; Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225. 993 NYS2d 322 [2d Dept 2014]). Accordingly. the default in answering of all of the non-answering defendants is fixed and detem1ined. In light of the outstanding issues of fact , the remainder of the ancillary relief is denied at this juncture. [n view of the foregoi ng, and pursuant to CPLR 32 12 (g), the court finds that the sole remaining issues of fact relate to: compliance with the notice of default provisions of the consolidated mortgage ; proof of compliance with R. PAPL 1303; and proof of the applicability of the 90-dny notice provisions of RP APL 1304 in this action . and. if required, proper evidcntiary proof of compliance with the same. Thus. the undecided branches of the plaintiffs motion are denied with leave to renew within I '.W days of the date herein, or, in the alternative. the filing of a note of issue within 120 days of the date of this order. The plaintiff's renewal motion. if any. shall include a copy of the papers submitted with this motion and a copy of this order. The proposed long form order submitted by the plaintiff appoi nting a marked "not signed ... Dated crec to compute has been ffi~ '.J~ dO~ Riverh NY _ _ FINAL DISPOSITION -~X- -FINAL DISPOSITION

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