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FILED: SUFFOLK COUNTY CLERK 01/03/2024 02:29 PM INDEX NO. 601401/2023
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/03/2024
MOT SEQ 1– Mot D
MOT SEQ 2 – Mot D
Next appearances: January 9, 2024 10:00 a.m. virtual
February 5, 2024 9:30 a.m. in person, hearing
SUPREME COURT – STATE OF NEW YORK
SUFFOLK COUNTY – IAS PART 81
HSBC BANK USA, N.A., as trustee, for Wells Fargo Alternative Loan Index Number: 601401/2023
2007-PA2 Trust,
ORDER ON MOTIONS
Plaintiff,
Hon. Aletha V. Fields, AJSC
-against-
CHERYL DIBENEDETTI, DENIS DIBENEDETTI, JOHN DOE, said
name being fictitious, it being the intention of plaintiff to designate any
and all of the occupants of the premises being foreclosed herein, and any
parties, corporations or entities, if any, having or claiming an interest or
lien upon the mortgaged premises,
Defendants.
Upon e-filed documents 33-79 and any other efiled document cited herein, considered on each of
plaintiff’s motion for summary judgment, a default judgment against non-appearing defendants, and ancillary
relief, including the appointment of a referee to compute the amount due (001), and Cheryl DiBenedetti’s and
Denis DiBenedetti’s motion to dismiss this action (002) or, in the alternative, for discovery relief, it is hereby
ORDERED that plaintiff’s motion for summary judgment be, and it hereby is, GRANTED, in part, to the
extent that:
(1) Plaintiff is granted summary judgment that the note is as set forth at NYSCEF dkt. 41 and that the
mortgage is as set forth at NYSCEF dkt. 42;
(2) Plaintiff is granted summary judgment dismissing the first through fifth affirmative defenses;
(3) Plaintiff is granted summary judgment dismissing the seventh through eleventh affirmative defenses;
(4) Plaintiff is granted summary judgment dismissing the thirteenth through fifteenth affirmative defense;
(5) Plaintiff is granted summary judgment dismissing the first and second counterclaims;
And it is further
ORDERED that counsel for each of the parties be, and hereby is, directed to appear before this Court for
a conference on January 9, 2024 at 10:00 a.m. by Microsoft Teams, using the standard part 81 link
(https://notify.nycourts.gov/meet/00awrv); and it is further
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ORDERED that a limited issue hearing on the question of whether the plaintiff herein and in 061153/2014
is the same be, and hereby is, scheduled for February 5, 2024 at 9:30 a.m., subject to a ready and passed marking
going day-to-day if the hearing cannot be held that day due to other obligations of the Court or for any other
reason that the hearing is adjourned; and it is further
ORDERED that so much of defendants’ cross-motion (002) to dismiss that seeks to dismiss based on
violations of RPAPL § 1304 be, it is hereby is, DENIED; and it is further
ORDERED that so much of defendants’ cross-motion to dismiss that seeks to dismiss this action as time
barred is decided to the limited extent that the limited issue hearing will determine the final outcome thereof; and
it is further
ORDERED that so much of defendants’ cross-motion that seeks discovery remedies be, and hereby is,
DENIED for failure to hold the required consultation (Uniform Rules for Trial Cts. [22 NYCRR] § 202.20-f [b]),
but the issues will be explored at the conference herein ordered and orders may result therefrom (id. § 202.20-g).
This is a residential mortgage foreclosure action filed on January 18, 2023 (Summons and Complaint [Dkt.
1]; Matter of Bosse v Simpson (173 AD3d 856 [2d Dept 2019]). Plaintiff has moved for summary judgment and,
among the relief that Cheryl and Denis Dibenedetti (defendants) seek in their motion is an order dismissing the
action because plaintiff did not mail RPAPL section 1304 notices to both Cheryl DiBenedetti and Denis
DiBenedetti by both first class and by certified mail. Defendants also argue that this action is time barred. Finally,
defendants assert plaintiff has violated plaintiff’s discovery obligations.
I. CPLR 3408
Defendants complain, “[p]laintiff rushed to file its current [m]otion for summary judgment on September
29, 2023” even though plaintiff “never requested a [f]oreclosure [c]onference” (Affidavit in Support and
Opposition [Dkt. 59] ¶ 19). The foreclosure conference statute, CPLR 3408, provides with an exception not
relevant here, that “in any residential foreclosure action involving a home loan as such term is defined in section
thirteen hundred four of the real property actions and proceedings law, in which the defendant is a resident of the
property subject to foreclosure . . . the court shall hold a mandatory conference” (CPLR 3408). Defendants admit
that they did not live at the property subject to foreclosure at commencement (Affidavit in Support and Opposition
[Dkt. 59] ¶ 7). Therefore, CPLR 3408 does not apply, and all pending motions are timely filed and ripe for
consideration.
Defendants rely on Nationstar Mtge., LLC v Sim (197 AD3d 1178 [2d Dept 2021]). However, there, the
issue was whether the subject loan was a home loan as defined in real property actions and proceedings law
section 1304. Defendants correctly read Sim as holding that residency in the subject premises is a necessary
element for a loan to be a home loan under section 1304 and is measured when the loan closes, this decision relies
on the language of CPLR 3408 that requires residency, at best for defendants, when a plaintiff commences the
foreclosure action involving a home loan.
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II. Plaintiff’s Motion for Summary Judgment
A. Mortgage Foreclosure Cause of Action
“To obtain summary judgment it is necessary that the movant establish [movant’s] cause of action or
defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in [movant’s] favor (CPLR
3212, subd [b]), and [movant] must do so by tender of evidentiary proof in admissible form” (Friends of Animals,
Inc. v Associated Fur Mfrs., 46 NY2d 1065, 1067, 416 NYS2d 790, 791-792 [1979]). “Generally, in moving for
summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case though the
production of the mortgage, the unpaid note, and evidence of default” (Plaza Equities, LLC v Lamberti, 118
AD3d 688, 689, 986 NYS2d 843, 843 [2d Dept 2014]). When evaluating the movant’s evidence, the court must
view it in the light most favorable to the nonmoving party (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 937
NYS2d 157 [2011]). “Failure to make this showing [of entitlement to judgment as a matter of law] requires denial
of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v N.Y. Univ. Med. Ctr., 64 NY2d
851, 853, 487 NYS2d 316, 318 [1985]; Deutsche Bank Natl. Trust Co. v Idarecis, 202 AD3d 1051, 163 NYS3d
239 [2d Dept 2022]).
To prove the note, plaintiff must prove the document that evidences the debt, a concept different from
what is, in mortgage foreclosure cases, called standing (U.S. Bank, N.A. v Nelson, 36 NY3d 998, 139 NYS3d
118 [2020] [Wilson, J., concurring] [describing the difference between on the one hand being a party to a contract
like a note which is an element of a prima facie case and on the other hand standing which a defendant may waive
and which is not an element of a prima facie case, unless challenged]). Here, plaintiff has presented evidence of
the note, dated February 20, 2007, in the initial principal amount of $903,000.00, and executed by Cheryl
DiBenedetti. The lender is Wells Fargo Bank, N.A. (Affirmation in Support of Motion for Summary Judgment
and Order of Reference [Dkt. 39] ¶ 2, Exhibit 1 [Affidavit in Support and Amounts Due (Dkt. 40) ¶ 4], Exhibit
1-A [Dkt. 41]). Defendants admit the note (Affidavit in Support and Opposition [Dkt. 59] ¶ 6).
To prove the mortgage, plaintiff has submitted an attorney’s affirmation incorporating a copy of the
mortgage that both defendants executed. The attorney’s affirmation refers to the liber and page at which the
mortgage is recorded, so this Court treats the affirmation as a CPLR 2105 certification of a recorded document
(Affirmation in Support of Motion for Summary Judgment and Order of Reference [Dkt. 39] ¶ 2, Exhibit 1
[Affidavit in Support and Amounts Due (Dkt. 40) ¶ 4], Exhibit 1-B [Dkt. 42]). Defendants admit the mortgage
(Affidavit in Support and Opposition [Dkt. 59] ¶ 7).
To prove the default in payment, plaintiff submitted an affidavit of a business representative of Specialized
Loan Servicing LLC (Affidavit in Support of Amounts Due [Dkt. 40]) that establishes business records foundation
for certain business records (id. ¶ 3). The same affidavit admits that the note and mortgage were assigned from
the original payee, “Wells Fargo Bank, N.A., to HSBC Bank, USA, National Association as Trustee for Wells
Fargo Asset Securities Corporation, Mortgage Asset-Backed Pass-Through Certificates Series 2007-PA2” by
indorsement in blank (id. at ¶ 7). As required by law, this Court infers unfavorably to plaintiff as movant is that
this servicer began servicing the loan upon transfer. Thus, missing from the plaintiff’s proof are the business
records from all prior servicers or sufficient proof to show that no such prior servicers exist. Moreover, that the
business records submitted date back to the origination date is meaningless because those entries may have come
from prior servicers for whose business records no foundation exists in the proof plaintiff submitted on this motion
(cf. Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]).
Therefore, plaintiff has not met its prima facie case on liability because it did not prove default on the note
and mortgage. The burden never shifted to defendants to raise a triable issue of fact as to default.
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B. Affirmative Defenses
Had plaintiff established the default, and thereby established its entitlement to summary judgment on the
issue of liability, then defendants’ failing to submit evidence “tending to establish the merit of any of their
affirmative defenses” would have constituted a waiver of each such unsupported defense (Charter One Bank,
FSB v Houston, 300 AD2d 429, 430 [2d Dept 2002]). Therefore, in this case, the affirmative defenses must be
considered individually.
1. Failure to State a Cause of Action
This affirmative defense is frivolous. Plaintiff clearly set forth all the elements required to show that it has
a potentially meritorious cause of action. Defendants’ first affirmative defense is dismissed.
2. Standing
The second and tenth affirmative defenses allege that plaintiff lacks standing because it was not the note’s
holder when this action was commenced. In particular, the tenth affirmative defense contends that any chain of
assignments or negotiations of the note left plaintiff without proper title to the note.
“A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that when the action
was commenced, it was either the holder or assignee of the underlying note” (Bank of Am., N.A. v Wheatley, 158
AD3d 736, 736 [2d Dept 2018]). Attaching a properly endorsed note to the complaint prima facie establishes
standing because “the physical delivery of the note prior to the commencement of the foreclosure action is
sufficient” (Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d 827, 828 [2d Dept 2016]). Here, plaintiff
has attached to the complaint the note with the original payee’s indorsement in blank, thereby meeting its prima
facie burden.
The burden shifts to defendants to raise a triable issue of fact. Defendants’ amended answer (Dkt. 64)
suggests in the tenth affirmative defense that plaintiff’s failure to explain how it came to possess the note defeats
plaintiff’s claim of standing. “Contrary to the [defendants’] contention, there is simply no requirement that an
entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into
possession of the instrument in order to be able to enforce it. Further, where the note is affixed to the complaint,
it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to
a particular date” (Wells Fargo Bank, N.A. v Thomas, 150 AD3d 1312, 1313 [2d Dept 2017] [internal quotation
marks and citations omitted]). Therefore, the second and tenth affirmative defenses are dismissed.
3. Non-existent Debt
Defendants’ third affirmative defense sets forth, “[p]laintiff is attempting to foreclose upon a non-existent
debt pursuant to, inter alia, the [s]tatute of [f]rauds and/or the terms of the alleged loan instrument (s)” (Amended
Answer [Dkt. 18] at ¶ 6). Plaintiff attached the note and the mortgage to the complaint, so asserting that the writing
requirement of the status of frauds is frivolous particularly when defendants have admitted both documents (22
NYCRR § § 130-1.1 [c] [1], [3]). Defendants’ third affirmative defense is dismissed.
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4. RPAPL § § 1303, 1304, 1306
A process server’s affidavit that establishes that a document such process server served meets each of the
required elements of section 1303 is sufficient proof to establish plaintiff’s prima facie burden (cf. US Bank, N.A.
v Banba, 189 AD3d 1116 [plaintiff submitted neither the 1303 notice nor a process server’s affidavit setting forth
all required elements]). Here, the process server’s affidavit sets forth that the process server served upon each of
the two defendants “the Notice required by RPAPL Section 1303, which Notice, as served, was printed on blue
paper, the title of the Notice appeared to be in bold 20-Point type, and the text appeared to be in bold 14-point
type” (Affidavits of Service [Dkt. 50] at 2, and at 5). The required elements of section 1303 are that the notice (1)
be delivered with the summons and complaint, (2) be in bold fourteen-point type, (3) have a title in bold twenty-
point type, and (4) be on its own page. Plaintiff has met its prima facie burden.
Defendants offer nothing to raise a triable issue of fact. Thus, so much of plaintiff’s motion that seeks to
dismiss so much of the fourth affirmative defense that relates to RPAPL section 1303 is granted.
Because defendants have raised RPAPL § 1304 compliance in the amended answer, plaintiff must prove
such compliance to be entitled to summary judgment (CIT Bank N.A. v Schiffman, 36 NY3d 550 [2021]; U.S.
Bank, N.A. v Kochlar, 176 AD3d 1010 [2d Dept 2019]). Plaintiff must prove that it complied strictly with the
mailing requirement (U.S. Bank, N.A. v 22-33 Brookhaven, Inc., 219 AD3d 657 [2d Dept 2023]). “Proof of the
requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return
receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items
are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” (Wells Fargo
Bank, N.A. v Mandrin, 160 AD3d 1014, 1016 [2d Dept 2018]).
Here, in respect of both defendants, plaintiff’s affiant established knowledge of a standard mailing practice
designed to ensure proper addressing and mailing and supported that sufficient proof (Affidavit of Mailing [Dkt.
47] ¶ 5, 12-15) with some documentary proof for both a first class and a certified mailing (id. ¶ 13, Exhibit B
[Dkt. 49]). Plaintiff has met its prima facie burden of proof.
Defendants claim, “[p]laintiff’s own RPAPL § 1304 notice with supporting business records fails to
mention the mailing of the § 1304 notice via certified mail upon DENIS DIBENEDETTI” because “the relevant
certified mail number on the alleged letter is missing from [p]laintiff’s own business records” (Affirmation in
Support and in Opposition [Dkt. 58] at ¶ 21 [capitalization in original]). Defendants’ argument presumes that a
specific set of evidence is required to establish 1304 compliance. The law imposes no such restriction. Here,
plaintiff’s affiant establishes that the imaged documents do not get stored as images in its system until mailing
occurs (standard practice) and provided the imaged documents. One such imaged document is a certified mailing
to defendant Denis DiBenedetti. Defendants have not raised a triable issue of fact.
Plaintiff has submitted proof of filing with the Department of Financial Services on September 23, 2023
in respect of the mailings made two days earlier on September 21, 2023. Therefore, plaintiff has established
RPAPL section 1306 compliance, shifting the burden to defendant to raise a triable issue of fact. Defendant raises
no such issue.
Therefore, the RPAPL sections 1304 and 1306 branches of the fourth affirmative defense are also
dismissed.
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5. Unclean Hands etc.
The doctrine of unclean hands does not necessarily apply to mortgage foreclosure actions (Jo Ann Homes
at Bellmore, Inc. v Dworetz, 25 NY2d 112 [1969]). Moreover, plaintiff’s proof establishes that plaintiff acted
properly and not inequitably throughout the mortgage process. Defendants raise no allegation of fact to raise a
triable issue of fact in respect of plaintiff’s showing, so this affirmative defense, defendants’ fifth, is dismissed.
6. Statute of Limitations
Index number 061153/2014 is a prior action seeking foreclosure on the same mortgage based upon the
same default at issue in this action (Affidavit in Support and Opposition [Dkt. 59] ¶ 9; Affirmation in Opposition
& Reply Affirmation [Dkt. 76] at ¶ 21 [“There is no dispute that there was a prior foreclosure action that was
timely commenced, nor that the same was dismissed”]). The prior foreclosure action, 061153/2014 was dismissed
on September 14, 2022 (Affidavit in Support and Opposition [Dkt. 59] ¶ 12; Affirmation in Opposition & Reply
Affirmation [Dkt. 76] ¶ 22). The supreme court dismissed 061153/2014 because the real property actions and
proceedings law section 1304 notice sent to Cheryl and Denis DiBenedetti was jointly addressed and sent in one
first class and one certified mail envelope, in violation of the separate envelope requirement set forth in section
1304 (Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d 126 [2d Dept 2021]).
The plaintiff in 061153/2014 was HSBC Bank USA, National Association as Trustee for Wells Fargo
Asset Securities Corporation, Mortgage Asset-Backed Pass-Through Certificates Series 2007-PA2 (Exhibit B
[Dkt. 61] to Affidavit in Support and Opposition [Dkt. 59]). The plaintiff in this action is “HSBC Bank USA,
National Association, as Trustee for Wells Fargo Alternative Loan 2007-PA2 Trust” (Summons [Dkt. 1]).
Because the 2014 action was dismissed in September 2022, the six-year statute of limitations (CPLR 213
[4]) has expired, leaving plaintiff to rely on a savings statute. Prior to December 30, 2022, the only applicable
savings statute was CPLR 205 (a). However, as part of the Foreclosure Abuse Prevention Act (L. 2022, ch. 821
[FAPA]), the Legislature passed, and the Governor signed into law, a foreclosure-specific savings statute (id. §
6) codified at CPLR 205-a. The foreclosure-specific savings statute became effective on December 30, 2022, the
day the Governor signed FAPA (L. 2022, ch. 821, § 10). Both parties argue only based on the foreclosure-specific
savings statute, so this Court proceeds on that basis.
The dismissal of the 2014 action was not on a ground that would otherwise disqualify this action from
benefitting from the foreclosure-specific savings statute, so “the original plaintiff . . . may commence a new action
upon the same transaction or occurrence or series of transactions or occurrences within six months following the
termination, provided that the new action would have been timely commenced within the applicable limitations
period prescribed by law at the time of the commencement of the prior action and that service upon the original
defendant is completed within such six-month period” (CPLR 205-a). Here, plaintiff has shown that this was
based on a default in payment that occurred on July 1, 2010 (Complaint, Schedule C [Dkt. 3]), so this action
would have been timely commenced within the applicable limitations period had it been commenced in 2014.
The relevant six-month period to serve the summons in this action began on September 14, 2022 when
the assigned justice caused to be entered the order dismissing the prior action (Dkt. 52). In this action, defendants
filed and served an amended answer on February 7, 2023, so service was, obviously, completed within six months
of September 14, 2022.
That leaves one issue—whether the plaintiff here is the same as the plaintiff in the prior action. The
plaintiff is a trust that acts through a trustee or servicer. Thus, we look to whether the trust is the same trust in the
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2014 and this action. In simple terms, is the Wells Fargo Asset Securities Corporation, Mortgage Asset-Backed
Pass-Through Certificates Series 2007-PA2, the captioned trust in the 2014 action the same as Wells Fargo
Alternative Loan 2007-PA2 Trust, the plaintiff here? In its argument, plaintiff contends that it simply used
different words to describe the same trust. Because this is plaintiff’s summary judgment motion, this Court must
make inferences adverse to plaintiff who controlled the words used in the both captions and complaints to identify
the parties. Thus, on plaintiff’s summary judgment motion, plaintiff has not established that the original plaintiff
has sued or that this plaintiff (if different) is suing on behalf of the original plaintiff.
Defendants have moved to dismiss on statute of limitations grounds. On defendants’ motion to dismiss,
this Court draws inferences adverse to defendants. Thus, plaintiff’s explanation that it simply used different words
to name the same trust sufficiently creates an issue of fact precluding granting defendants motion to dismiss.
This Court, therefore, orders a limited issue hearing on the identity of the plaintiffs in the two actions. If
the two plaintiffs are the same, defendants motion to dismiss fails, and their sixth affirmative defense is dismissed;
if the two are different, then defendants’ motion to dismiss succeeds and this action is dismissed as time barred.
This Court has scheduled a conference to explore alternatives to the limited issue hearing and to discuss
who bears the burden of proof at such hearing. In addition, in light of the allegations of discovery misconduct by
plaintiff, the conference will address discovery issues related to the limited issue hearing (Uniform Rules for Trial
Cts [22 NYCRR § § 202.20-f, -g).
7. Additional Defenses
Defendants have already filed an amended answer as a matter of right, so further assertion of affirmative
defenses requires a successful CPLR 3025 application, as plaintiff correctly argues. Therefore, without precluding
or making any indication of how this Court might rule on a later motion to amend further defendants’ answer, the
seventh affirmative defense is dismissed.
8. Lack of Personal Jurisdiction
Despite having filed an answer and an amended answer, defendants claim that service of process was
somehow improper. Because defendants did not move to dismiss the complaint on this ground within sixty days
after they filed and served the amended answer, defendants, as plaintiff correctly argues, have waived this defense
and have submitted to the personal jurisdiction of this Court (CPLR 3211 [e]). The eighth affirmative defense is
dismissed.
9. Failure of A Condition Precedent
Defendants’ claim that plaintiff failed to send the contractually required notice of default. Plaintiff’s proof,
as described more fully in the analysis of defendants’ 1304 defense, establishes as a matter of law that plaintiff is
entitled to summary judgment dismissing this affirmative defense. The standard mailing practice and additional
documentary proof of the notices of default meets plaintiff’s burden. Defendant raises no issue of triable fact. The
ninth affirmative defense is dismissed.
10. Standing
The tenth affirmative defense is dismissed for the reasons set forth above in the analysis of the second
affirmative defense.
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11. Mitigation of Damages
Where the event triggering acceleration is failure to pay principal and interest, mitigation of damages is
not a relevant consideration in a mortgage foreclosure action (Graf v Hope Bldg. Corp., 254 NY 1 [1930]
questioned on other grounds by Concert Radio, Inc. v GAF Corp., 108 AD2d 273 [1st Dept 1985]). Therefore,
the eleventh affirmative defense is dismissed.
12. Truth in Lending and Other Statutes and Regulations
Because plaintiff did not meet its prima facie burden on liability, this Court cannot, as plaintiff urges,
dismiss the truth in lending and other statutory and regulatory based affirmative defense based on defendants not
pursuing it to oppose this motion (Wells Fargo Bank, N.A. v Carrington, -- AD3d --, 2023 NY Slip Op 05632
[2d Dept 2023]).
13. Failure to Join a Necessary Party
Defendants contend in conclusory terms that plaintiff failed to join a necessary party. Defendants do not
identify who the necessary party is. Dismissal for failure to join a necessary party is a last resort (Red
Hook/Gowanus Chamber of Commerce v NY City Bd. of Stds. & Appeals, 5 NY3d 452 [2005]) and the preferred
remedy is to direct that the necessary party be joined (CPLR 1001 [a]). A necessary party is a party that ought to
be joined to accord complete relief or whose interests may be inequitably affected by the action (id.). Here,
however, any party with an interest in the realty stands fully protected (Matter of Glass v Estate of Gold, 48
AD3d 746 [2d Dept 2008]). Therefore, this affirmative defense fails as a matter of law on the record as it stands;
of course, if defendants ever want to cause to be joined a necessary party or to seek the last resort of dismissal,
defendants may do so by motion practice. Therefore, the thirteenth affirmative defense is dismissed.
14. Amounts Listed Are Incorrect
Defendants’ fourteenth affirmative defense contends that the amounts listed in the complaint are incorrect.
In effect, if the calculations are incorrect, defendants’ remedy is a trial to determine the proper amounts. This is
not an affirmative defense; it is a flag that defendants disagree with the accounting/calculations plaintiff intends
to offer. This issue need not be raised like this, so the affirmative defense is dismissed, with defendants having
all rights to contest the damages calculation.
15. Fraudulent Conduct
Mortgage foreclosure actions are not subject to dismissal because of fraudulent misrepresentations,
especially where, as here, the mortgage was taken out in February 2007 and the alleged default occurred more
than three years later (Jo Ann Homes at Bellmore, Inc. v Dworetz, 25 NY2d 112 [1969]). Defendants show no
nexus between the unspecified fraudulent conduct (see, CPLR 3016 [b]) and the default in payment plaintiff
alleges. The fifteenth affirmative defense and first counterclaim are dismissed. To the extent that defendants claim
regulatory non-compliance, defendants preserved that issue in their twelfth affirmative defense.
16. Servicing Regulatory and Legal Noncompliance
The sixteenth affirmative defense survives for the same reasons that the twelfth affirmative defense does.
To the extent that defendants’ sixteenth affirmative defense and second counterclaim relates to regulatory
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noncompliance by the servicer, it survives for the same reason as the twelfth affirmative defense, it survives as a
counterclaim.
17. Attorney Fee Shifting
Defendants’ seventeenth affirmative defense and third counterclaim is an affirmative claim for attorneys’
fees under certain statutes. Because plaintiff did not prove liability, the seventeenth affirmative defense and third
counterclaim survives.
III. Defendants’ Cross-Motion
Defendants’ cross-motion seeks three forms of relief. Set forth above in the analysis of plaintiff’s motion
to dismiss the sixth affirmative defense is the reasoning for deciding defendants’ cross-motion regarding this
action being time barred. A limited issue hearing is required.
Defendants’ cross-motion that seeks dismissal of the complaint for noncompliance with RPAPL section
1304 is denied for the reasons set forth above in the analysis of plaintiff’s motion to dismiss the fourth affirmative
defense.
Defendants’ motion papers do not show any in person or telephonic consultation regarding the open
discovery issues (Uniform Rules for Trial Cts [22 NYCRR] § 202.20-f[b] [“Such consultation must take place by
an in-person or telephonic conference”]), so that branch of the motion is denied (Uniform Rules for Trial Cts [22
NYCRR] § 202.20-f [c]). However, at the conference, this Court will discuss open discovery issues (Uniform
Rules for Trial Cts [22 NYCRR] § § 202.20-f, 202.20-g).
Dated : December 26, 2023
Riverhead, New York
__________________________________________
Hon. Aletha V. Fields, AJSC
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FILED: SUFFOLK COUNTY CLERK 01/03/2024 02:29 PM INDEX NO. 601401/2023 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/03/2024 MOT SEQ 1– Mot D MOT SEQ 2 – Mot D Next appearances: January 9, 2024 10:00 a.m. virtual February 5, 2024 9:30 a.m. in person, hearing SUPREME COURT – STATE OF NEW YORK SUFFOLK COUNTY – IAS PART 81 HSBC BANK USA, N.A., as trustee, for Wells Fargo Alternative Loan Index Number: 601401/2023 2007-PA2 Trust, ORDER ON MOTIONS Plaintiff, Hon. Aletha V. Fields, AJSC -against- CHERYL DIBENEDETTI, DENIS DIBENEDETTI, JOHN DOE, said name being fictitious, it being the intention of plaintiff to designate any and all of the occupants of the premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants. Upon e-filed documents 33-79 and any other efiled document cited herein, considered on each of plaintiff’s motion for summary judgment, a default judgment against non-appearing defendants, and ancillary relief, including the appointment of a referee to compute the amount due (001), and Cheryl DiBenedetti’s and Denis DiBenedetti’s motion to dismiss this action (002) or, in the alternative, for discovery relief, it is hereby ORDERED that plaintiff’s motion for summary judgment be, and it hereby is, GRANTED, in part, to the extent that: (1) Plaintiff is granted summary judgment that the note is as set forth at NYSCEF dkt. 41 and that the mortgage is as set forth at NYSCEF dkt. 42; (2) Plaintiff is granted summary judgment dismissing the first through fifth affirmative defenses; (3) Plaintiff is granted summary judgment dismissing the seventh through eleventh affirmative defenses; (4) Plaintiff is granted summary judgment dismissing the thirteenth through fifteenth affirmative defense; (5) Plaintiff is granted summary judgment dismissing the first and second counterclaims; And it is further ORDERED that counsel for each of the parties be, and hereby is, directed to appear before this Court for a conference on January 9, 2024 at 10:00 a.m. by Microsoft Teams, using the standard part 81 link (https://notify.nycourts.gov/meet/00awrv); and it is further 1 of 9 FILED: SUFFOLK COUNTY CLERK 01/03/2024 02:29 PM INDEX NO. 601401/2023 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/03/2024 601401/2023 Order on Motions Page 2 ORDERED that a limited issue hearing on the question of whether the plaintiff herein and in 061153/2014 is the same be, and hereby is, scheduled for February 5, 2024 at 9:30 a.m., subject to a ready and passed marking going day-to-day if the hearing cannot be held that day due to other obligations of the Court or for any other reason that the hearing is adjourned; and it is further ORDERED that so much of defendants’ cross-motion (002) to dismiss that seeks to dismiss based on violations of RPAPL § 1304 be, it is hereby is, DENIED; and it is further ORDERED that so much of defendants’ cross-motion to dismiss that seeks to dismiss this action as time barred is decided to the limited extent that the limited issue hearing will determine the final outcome thereof; and it is further ORDERED that so much of defendants’ cross-motion that seeks discovery remedies be, and hereby is, DENIED for failure to hold the required consultation (Uniform Rules for Trial Cts. [22 NYCRR] § 202.20-f [b]), but the issues will be explored at the conference herein ordered and orders may result therefrom (id. § 202.20-g). This is a residential mortgage foreclosure action filed on January 18, 2023 (Summons and Complaint [Dkt. 1]; Matter of Bosse v Simpson (173 AD3d 856 [2d Dept 2019]). Plaintiff has moved for summary judgment and, among the relief that Cheryl and Denis Dibenedetti (defendants) seek in their motion is an order dismissing the action because plaintiff did not mail RPAPL section 1304 notices to both Cheryl DiBenedetti and Denis DiBenedetti by both first class and by certified mail. Defendants also argue that this action is time barred. Finally, defendants assert plaintiff has violated plaintiff’s discovery obligations. I. CPLR 3408 Defendants complain, “[p]laintiff rushed to file its current [m]otion for summary judgment on September 29, 2023” even though plaintiff “never requested a [f]oreclosure [c]onference” (Affidavit in Support and Opposition [Dkt. 59] ¶ 19). The foreclosure conference statute, CPLR 3408, provides with an exception not relevant here, that “in any residential foreclosure action involving a home loan as such term is defined in section thirteen hundred four of the real property actions and proceedings law, in which the defendant is a resident of the property subject to foreclosure . . . the court shall hold a mandatory conference” (CPLR 3408). Defendants admit that they did not live at the property subject to foreclosure at commencement (Affidavit in Support and Opposition [Dkt. 59] ¶ 7). Therefore, CPLR 3408 does not apply, and all pending motions are timely filed and ripe for consideration. Defendants rely on Nationstar Mtge., LLC v Sim (197 AD3d 1178 [2d Dept 2021]). However, there, the issue was whether the subject loan was a home loan as defined in real property actions and proceedings law section 1304. Defendants correctly read Sim as holding that residency in the subject premises is a necessary element for a loan to be a home loan under section 1304 and is measured when the loan closes, this decision relies on the language of CPLR 3408 that requires residency, at best for defendants, when a plaintiff commences the foreclosure action involving a home loan. 2 of 9 FILED: SUFFOLK COUNTY CLERK 01/03/2024 02:29 PM INDEX NO. 601401/2023 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/03/2024 601401/2023 Order on Motions Page 3 II. Plaintiff’s Motion for Summary Judgment A. Mortgage Foreclosure Cause of Action “To obtain summary judgment it is necessary that the movant establish [movant’s] cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in [movant’s] favor (CPLR 3212, subd [b]), and [movant] must do so by tender of evidentiary proof in admissible form” (Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065, 1067, 416 NYS2d 790, 791-792 [1979]). “Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case though the production of the mortgage, the unpaid note, and evidence of default” (Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689, 986 NYS2d 843, 843 [2d Dept 2014]). When evaluating the movant’s evidence, the court must view it in the light most favorable to the nonmoving party (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 937 NYS2d 157 [2011]). “Failure to make this showing [of entitlement to judgment as a matter of law] requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v N.Y. Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316, 318 [1985]; Deutsche Bank Natl. Trust Co. v Idarecis, 202 AD3d 1051, 163 NYS3d 239 [2d Dept 2022]). To prove the note, plaintiff must prove the document that evidences the debt, a concept different from what is, in mortgage foreclosure cases, called standing (U.S. Bank, N.A. v Nelson, 36 NY3d 998, 139 NYS3d 118 [2020] [Wilson, J., concurring] [describing the difference between on the one hand being a party to a contract like a note which is an element of a prima facie case and on the other hand standing which a defendant may waive and which is not an element of a prima facie case, unless challenged]). Here, plaintiff has presented evidence of the note, dated February 20, 2007, in the initial principal amount of $903,000.00, and executed by Cheryl DiBenedetti. The lender is Wells Fargo Bank, N.A. (Affirmation in Support of Motion for Summary Judgment and Order of Reference [Dkt. 39] ¶ 2, Exhibit 1 [Affidavit in Support and Amounts Due (Dkt. 40) ¶ 4], Exhibit 1-A [Dkt. 41]). Defendants admit the note (Affidavit in Support and Opposition [Dkt. 59] ¶ 6). To prove the mortgage, plaintiff has submitted an attorney’s affirmation incorporating a copy of the mortgage that both defendants executed. The attorney’s affirmation refers to the liber and page at which the mortgage is recorded, so this Court treats the affirmation as a CPLR 2105 certification of a recorded document (Affirmation in Support of Motion for Summary Judgment and Order of Reference [Dkt. 39] ¶ 2, Exhibit 1 [Affidavit in Support and Amounts Due (Dkt. 40) ¶ 4], Exhibit 1-B [Dkt. 42]). Defendants admit the mortgage (Affidavit in Support and Opposition [Dkt. 59] ¶ 7). To prove the default in payment, plaintiff submitted an affidavit of a business representative of Specialized Loan Servicing LLC (Affidavit in Support of Amounts Due [Dkt. 40]) that establishes business records foundation for certain business records (id. ¶ 3). The same affidavit admits that the note and mortgage were assigned from the original payee, “Wells Fargo Bank, N.A., to HSBC Bank, USA, National Association as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Asset-Backed Pass-Through Certificates Series 2007-PA2” by indorsement in blank (id. at ¶ 7). As required by law, this Court infers unfavorably to plaintiff as movant is that this servicer began servicing the loan upon transfer. Thus, missing from the plaintiff’s proof are the business records from all prior servicers or sufficient proof to show that no such prior servicers exist. Moreover, that the business records submitted date back to the origination date is meaningless because those entries may have come from prior servicers for whose business records no foundation exists in the proof plaintiff submitted on this motion (cf. Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]). Therefore, plaintiff has not met its prima facie case on liability because it did not prove default on the note and mortgage. The burden never shifted to defendants to raise a triable issue of fact as to default. 3 of 9 FILED: SUFFOLK COUNTY CLERK 01/03/2024 02:29 PM INDEX NO. 601401/2023 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/03/2024 601401/2023 Order on Motions Page 4 B. Affirmative Defenses Had plaintiff established the default, and thereby established its entitlement to summary judgment on the issue of liability, then defendants’ failing to submit evidence “tending to establish the merit of any of their affirmative defenses” would have constituted a waiver of each such unsupported defense (Charter One Bank, FSB v Houston, 300 AD2d 429, 430 [2d Dept 2002]). Therefore, in this case, the affirmative defenses must be considered individually. 1. Failure to State a Cause of Action This affirmative defense is frivolous. Plaintiff clearly set forth all the elements required to show that it has a potentially meritorious cause of action. Defendants’ first affirmative defense is dismissed. 2. Standing The second and tenth affirmative defenses allege that plaintiff lacks standing because it was not the note’s holder when this action was commenced. In particular, the tenth affirmative defense contends that any chain of assignments or negotiations of the note left plaintiff without proper title to the note. “A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that when the action was commenced, it was either the holder or assignee of the underlying note” (Bank of Am., N.A. v Wheatley, 158 AD3d 736, 736 [2d Dept 2018]). Attaching a properly endorsed note to the complaint prima facie establishes standing because “the physical delivery of the note prior to the commencement of the foreclosure action is sufficient” (Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d 827, 828 [2d Dept 2016]). Here, plaintiff has attached to the complaint the note with the original payee’s indorsement in blank, thereby meeting its prima facie burden. The burden shifts to defendants to raise a triable issue of fact. Defendants’ amended answer (Dkt. 64) suggests in the tenth affirmative defense that plaintiff’s failure to explain how it came to possess the note defeats plaintiff’s claim of standing. “Contrary to the [defendants’] contention, there is simply no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it. Further, where the note is affixed to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date” (Wells Fargo Bank, N.A. v Thomas, 150 AD3d 1312, 1313 [2d Dept 2017] [internal quotation marks and citations omitted]). Therefore, the second and tenth affirmative defenses are dismissed. 3. Non-existent Debt Defendants’ third affirmative defense sets forth, “[p]laintiff is attempting to foreclose upon a non-existent debt pursuant to, inter alia, the [s]tatute of [f]rauds and/or the terms of the alleged loan instrument (s)” (Amended Answer [Dkt. 18] at ¶ 6). Plaintiff attached the note and the mortgage to the complaint, so asserting that the writing requirement of the status of frauds is frivolous particularly when defendants have admitted both documents (22 NYCRR § § 130-1.1 [c] [1], [3]). Defendants’ third affirmative defense is dismissed. 4 of 9 FILED: SUFFOLK COUNTY CLERK 01/03/2024 02:29 PM INDEX NO. 601401/2023 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/03/2024 601401/2023 Order on Motions Page 5 4. RPAPL § § 1303, 1304, 1306 A process server’s affidavit that establishes that a document such process server served meets each of the required elements of section 1303 is sufficient proof to establish plaintiff’s prima facie burden (cf. US Bank, N.A. v Banba, 189 AD3d 1116 [plaintiff submitted neither the 1303 notice nor a process server’s affidavit setting forth all required elements]). Here, the process server’s affidavit sets forth that the process server served upon each of the two defendants “the Notice required by RPAPL Section 1303, which Notice, as served, was printed on blue paper, the title of the Notice appeared to be in bold 20-Point type, and the text appeared to be in bold 14-point type” (Affidavits of Service [Dkt. 50] at 2, and at 5). The required elements of section 1303 are that the notice (1) be delivered with the summons and complaint, (2) be in bold fourteen-point type, (3) have a title in bold twenty- point type, and (4) be on its own page. Plaintiff has met its prima facie burden. Defendants offer nothing to raise a triable issue of fact. Thus, so much of plaintiff’s motion that seeks to dismiss so much of the fourth affirmative defense that relates to RPAPL section 1303 is granted. Because defendants have raised RPAPL § 1304 compliance in the amended answer, plaintiff must prove such compliance to be entitled to summary judgment (CIT Bank N.A. v Schiffman, 36 NY3d 550 [2021]; U.S. Bank, N.A. v Kochlar, 176 AD3d 1010 [2d Dept 2019]). Plaintiff must prove that it complied strictly with the mailing requirement (U.S. Bank, N.A. v 22-33 Brookhaven, Inc., 219 AD3d 657 [2d Dept 2023]). “Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” (Wells Fargo Bank, N.A. v Mandrin, 160 AD3d 1014, 1016 [2d Dept 2018]). Here, in respect of both defendants, plaintiff’s affiant established knowledge of a standard mailing practice designed to ensure proper addressing and mailing and supported that sufficient proof (Affidavit of Mailing [Dkt. 47] ¶ 5, 12-15) with some documentary proof for both a first class and a certified mailing (id. ¶ 13, Exhibit B [Dkt. 49]). Plaintiff has met its prima facie burden of proof. Defendants claim, “[p]laintiff’s own RPAPL § 1304 notice with supporting business records fails to mention the mailing of the § 1304 notice via certified mail upon DENIS DIBENEDETTI” because “the relevant certified mail number on the alleged letter is missing from [p]laintiff’s own business records” (Affirmation in Support and in Opposition [Dkt. 58] at ¶ 21 [capitalization in original]). Defendants’ argument presumes that a specific set of evidence is required to establish 1304 compliance. The law imposes no such restriction. Here, plaintiff’s affiant establishes that the imaged documents do not get stored as images in its system until mailing occurs (standard practice) and provided the imaged documents. One such imaged document is a certified mailing to defendant Denis DiBenedetti. Defendants have not raised a triable issue of fact. Plaintiff has submitted proof of filing with the Department of Financial Services on September 23, 2023 in respect of the mailings made two days earlier on September 21, 2023. Therefore, plaintiff has established RPAPL section 1306 compliance, shifting the burden to defendant to raise a triable issue of fact. Defendant raises no such issue. Therefore, the RPAPL sections 1304 and 1306 branches of the fourth affirmative defense are also dismissed. 5 of 9 FILED: SUFFOLK COUNTY CLERK 01/03/2024 02:29 PM INDEX NO. 601401/2023 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/03/2024 601401/2023 Order on Motions Page 6 5. Unclean Hands etc. The doctrine of unclean hands does not necessarily apply to mortgage foreclosure actions (Jo Ann Homes at Bellmore, Inc. v Dworetz, 25 NY2d 112 [1969]). Moreover, plaintiff’s proof establishes that plaintiff acted properly and not inequitably throughout the mortgage process. Defendants raise no allegation of fact to raise a triable issue of fact in respect of plaintiff’s showing, so this affirmative defense, defendants’ fifth, is dismissed. 6. Statute of Limitations Index number 061153/2014 is a prior action seeking foreclosure on the same mortgage based upon the same default at issue in this action (Affidavit in Support and Opposition [Dkt. 59] ¶ 9; Affirmation in Opposition & Reply Affirmation [Dkt. 76] at ¶ 21 [“There is no dispute that there was a prior foreclosure action that was timely commenced, nor that the same was dismissed”]). The prior foreclosure action, 061153/2014 was dismissed on September 14, 2022 (Affidavit in Support and Opposition [Dkt. 59] ¶ 12; Affirmation in Opposition & Reply Affirmation [Dkt. 76] ¶ 22). The supreme court dismissed 061153/2014 because the real property actions and proceedings law section 1304 notice sent to Cheryl and Denis DiBenedetti was jointly addressed and sent in one first class and one certified mail envelope, in violation of the separate envelope requirement set forth in section 1304 (Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d 126 [2d Dept 2021]). The plaintiff in 061153/2014 was HSBC Bank USA, National Association as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Asset-Backed Pass-Through Certificates Series 2007-PA2 (Exhibit B [Dkt. 61] to Affidavit in Support and Opposition [Dkt. 59]). The plaintiff in this action is “HSBC Bank USA, National Association, as Trustee for Wells Fargo Alternative Loan 2007-PA2 Trust” (Summons [Dkt. 1]). Because the 2014 action was dismissed in September 2022, the six-year statute of limitations (CPLR 213 [4]) has expired, leaving plaintiff to rely on a savings statute. Prior to December 30, 2022, the only applicable savings statute was CPLR 205 (a). However, as part of the Foreclosure Abuse Prevention Act (L. 2022, ch. 821 [FAPA]), the Legislature passed, and the Governor signed into law, a foreclosure-specific savings statute (id. § 6) codified at CPLR 205-a. The foreclosure-specific savings statute became effective on December 30, 2022, the day the Governor signed FAPA (L. 2022, ch. 821, § 10). Both parties argue only based on the foreclosure-specific savings statute, so this Court proceeds on that basis. The dismissal of the 2014 action was not on a ground that would otherwise disqualify this action from benefitting from the foreclosure-specific savings statute, so “the original plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period” (CPLR 205-a). Here, plaintiff has shown that this was based on a default in payment that occurred on July 1, 2010 (Complaint, Schedule C [Dkt. 3]), so this action would have been timely commenced within the applicable limitations period had it been commenced in 2014. The relevant six-month period to serve the summons in this action began on September 14, 2022 when the assigned justice caused to be entered the order dismissing the prior action (Dkt. 52). In this action, defendants filed and served an amended answer on February 7, 2023, so service was, obviously, completed within six months of September 14, 2022. That leaves one issue—whether the plaintiff here is the same as the plaintiff in the prior action. The plaintiff is a trust that acts through a trustee or servicer. Thus, we look to whether the trust is the same trust in the 6 of 9 FILED: SUFFOLK COUNTY CLERK 01/03/2024 02:29 PM INDEX NO. 601401/2023 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/03/2024 601401/2023 Order on Motions Page 7 2014 and this action. In simple terms, is the Wells Fargo Asset Securities Corporation, Mortgage Asset-Backed Pass-Through Certificates Series 2007-PA2, the captioned trust in the 2014 action the same as Wells Fargo Alternative Loan 2007-PA2 Trust, the plaintiff here? In its argument, plaintiff contends that it simply used different words to describe the same trust. Because this is plaintiff’s summary judgment motion, this Court must make inferences adverse to plaintiff who controlled the words used in the both captions and complaints to identify the parties. Thus, on plaintiff’s summary judgment motion, plaintiff has not established that the original plaintiff has sued or that this plaintiff (if different) is suing on behalf of the original plaintiff. Defendants have moved to dismiss on statute of limitations grounds. On defendants’ motion to dismiss, this Court draws inferences adverse to defendants. Thus, plaintiff’s explanation that it simply used different words to name the same trust sufficiently creates an issue of fact precluding granting defendants motion to dismiss. This Court, therefore, orders a limited issue hearing on the identity of the plaintiffs in the two actions. If the two plaintiffs are the same, defendants motion to dismiss fails, and their sixth affirmative defense is dismissed; if the two are different, then defendants’ motion to dismiss succeeds and this action is dismissed as time barred. This Court has scheduled a conference to explore alternatives to the limited issue hearing and to discuss who bears the burden of proof at such hearing. In addition, in light of the allegations of discovery misconduct by plaintiff, the conference will address discovery issues related to the limited issue hearing (Uniform Rules for Trial Cts [22 NYCRR § § 202.20-f, -g). 7. Additional Defenses Defendants have already filed an amended answer as a matter of right, so further assertion of affirmative defenses requires a successful CPLR 3025 application, as plaintiff correctly argues. Therefore, without precluding or making any indication of how this Court might rule on a later motion to amend further defendants’ answer, the seventh affirmative defense is dismissed. 8. Lack of Personal Jurisdiction Despite having filed an answer and an amended answer, defendants claim that service of process was somehow improper. Because defendants did not move to dismiss the complaint on this ground within sixty days after they filed and served the amended answer, defendants, as plaintiff correctly argues, have waived this defense and have submitted to the personal jurisdiction of this Court (CPLR 3211 [e]). The eighth affirmative defense is dismissed. 9. Failure of A Condition Precedent Defendants’ claim that plaintiff failed to send the contractually required notice of default. Plaintiff’s proof, as described more fully in the analysis of defendants’ 1304 defense, establishes as a matter of law that plaintiff is entitled to summary judgment dismissing this affirmative defense. The standard mailing practice and additional documentary proof of the notices of default meets plaintiff’s burden. Defendant raises no issue of triable fact. The ninth affirmative defense is dismissed. 10. Standing The tenth affirmative defense is dismissed for the reasons set forth above in the analysis of the second affirmative defense. 7 of 9 FILED: SUFFOLK COUNTY CLERK 01/03/2024 02:29 PM INDEX NO. 601401/2023 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/03/2024 601401/2023 Order on Motions Page 8 11. Mitigation of Damages Where the event triggering acceleration is failure to pay principal and interest, mitigation of damages is not a relevant consideration in a mortgage foreclosure action (Graf v Hope Bldg. Corp., 254 NY 1 [1930] questioned on other grounds by Concert Radio, Inc. v GAF Corp., 108 AD2d 273 [1st Dept 1985]). Therefore, the eleventh affirmative defense is dismissed. 12. Truth in Lending and Other Statutes and Regulations Because plaintiff did not meet its prima facie burden on liability, this Court cannot, as plaintiff urges, dismiss the truth in lending and other statutory and regulatory based affirmative defense based on defendants not pursuing it to oppose this motion (Wells Fargo Bank, N.A. v Carrington, -- AD3d --, 2023 NY Slip Op 05632 [2d Dept 2023]). 13. Failure to Join a Necessary Party Defendants contend in conclusory terms that plaintiff failed to join a necessary party. Defendants do not identify who the necessary party is. Dismissal for failure to join a necessary party is a last resort (Red Hook/Gowanus Chamber of Commerce v NY City Bd. of Stds. & Appeals, 5 NY3d 452 [2005]) and the preferred remedy is to direct that the necessary party be joined (CPLR 1001 [a]). A necessary party is a party that ought to be joined to accord complete relief or whose interests may be inequitably affected by the action (id.). Here, however, any party with an interest in the realty stands fully protected (Matter of Glass v Estate of Gold, 48 AD3d 746 [2d Dept 2008]). Therefore, this affirmative defense fails as a matter of law on the record as it stands; of course, if defendants ever want to cause to be joined a necessary party or to seek the last resort of dismissal, defendants may do so by motion practice. Therefore, the thirteenth affirmative defense is dismissed. 14. Amounts Listed Are Incorrect Defendants’ fourteenth affirmative defense contends that the amounts listed in the complaint are incorrect. In effect, if the calculations are incorrect, defendants’ remedy is a trial to determine the proper amounts. This is not an affirmative defense; it is a flag that defendants disagree with the accounting/calculations plaintiff intends to offer. This issue need not be raised like this, so the affirmative defense is dismissed, with defendants having all rights to contest the damages calculation. 15. Fraudulent Conduct Mortgage foreclosure actions are not subject to dismissal because of fraudulent misrepresentations, especially where, as here, the mortgage was taken out in February 2007 and the alleged default occurred more than three years later (Jo Ann Homes at Bellmore, Inc. v Dworetz, 25 NY2d 112 [1969]). Defendants show no nexus between the unspecified fraudulent conduct (see, CPLR 3016 [b]) and the default in payment plaintiff alleges. The fifteenth affirmative defense and first counterclaim are dismissed. To the extent that defendants claim regulatory non-compliance, defendants preserved that issue in their twelfth affirmative defense. 16. Servicing Regulatory and Legal Noncompliance The sixteenth affirmative defense survives for the same reasons that the twelfth affirmative defense does. To the extent that defendants’ sixteenth affirmative defense and second counterclaim relates to regulatory 8 of 9 FILED: SUFFOLK COUNTY CLERK 01/03/2024 02:29 PM INDEX NO. 601401/2023 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/03/2024 601401/2023 Order on Motions Page 9 noncompliance by the servicer, it survives for the same reason as the twelfth affirmative defense, it survives as a counterclaim. 17. Attorney Fee Shifting Defendants’ seventeenth affirmative defense and third counterclaim is an affirmative claim for attorneys’ fees under certain statutes. Because plaintiff did not prove liability, the seventeenth affirmative defense and third counterclaim survives. III. Defendants’ Cross-Motion Defendants’ cross-motion seeks three forms of relief. Set forth above in the analysis of plaintiff’s motion to dismiss the sixth affirmative defense is the reasoning for deciding defendants’ cross-motion regarding this action being time barred. A limited issue hearing is required. Defendants’ cross-motion that seeks dismissal of the complaint for noncompliance with RPAPL section 1304 is denied for the reasons set forth above in the analysis of plaintiff’s motion to dismiss the fourth affirmative defense. Defendants’ motion papers do not show any in person or telephonic consultation regarding the open discovery issues (Uniform Rules for Trial Cts [22 NYCRR] § 202.20-f[b] [“Such consultation must take place by an in-person or telephonic conference”]), so that branch of the motion is denied (Uniform Rules for Trial Cts [22 NYCRR] § 202.20-f [c]). However, at the conference, this Court will discuss open discovery issues (Uniform Rules for Trial Cts [22 NYCRR] § § 202.20-f, 202.20-g). Dated : December 26, 2023 Riverhead, New York __________________________________________ Hon. Aletha V. Fields, AJSC 9 of 9