Preview
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------------x
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
FOR CMSI REMIC SERIES 2008-01-REMIC PASS-
THROUGH CERTIFICATES SERIES 2008-1, Index No. 702411/2022
Plaintiff,
-against- AFFIRMATION IN SUPPORT OF
PLAINTIFF’S MOTION FOR
ABDUL ELCOCK A/K/A ABDUL J. ELCOCK; SUMMARY JUDGMENT
CITIBANK (SOUTH DAKOTA) N.A.; ENERBANK USA; AND RELATED RELIEF
FIA CARD SERVICES, N.A.; EVERBANK; JOHN DOE
Mortgaged Premises:
(SAID NAME BEING FICTITIOUS TO REPRESENT
112-44 180th Street
UNKNOWN TENANTS/OCCUPANTS OF THE SUBJECT Jamaica, New York 11433
PROPERTY AND ANY OTHER PARTY OR ENTITY OF
ANY KIND, IF ANY, HAVING OR CLAIMING AN Block: 10303; Lot 47
INTEREST OR LIEN UPON THE MORTGAGED
PROPERTY)
Defendants.
----------------------------------------------------------------------x
EMILIO LAMANNA, ESQ., an attorney duly admitted to practice law before the courts
of the State of New York, affirms the following to be true under the penalties of perjury:
1. I am an attorney of the law firm of Houser LLP, attorneys for plaintiff, U.S. BANK
NATIONAL ASSOCIATION AS TRUSTEE FOR CMSI REMIC SERIES 2008-01-REMIC
PASS-THROUGH CERTIFICATES SERIES 2008-1 (“Plaintiff”), in this action and I am fully
familiar with the facts and circumstances of this case based upon my review of the file maintained
by this firm and communications with Plaintiff’s representatives.
2. This Affirmation is submitted in support of Plaintiff’s application for an Order: (a)
granting Plaintiff summary judgment, pursuant to CPLR §3212, against defendant Abdul Elcock
a/k/a Abdul J. Elcock (“Defendant”) and defendant EnerBank USA; (b) striking and dismissing
the Verified Answer with affirmative defenses and counterclaims (“Answer”) interposed by
1
1 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
Defendant and deeming it an appearance and waiver in foreclosure; (c) granting Plaintiff a default
judgment, pursuant to CPLR §3215, against all non-answering and non-appearing defendants; (d)
appointing a Referee, pursuant to RPAPL §1321, to compute the sums due and owing to Plaintiff;
(e) amending the case caption to remove the “John Doe” defendants and instead substituting in
Yulanda Mann and Amira “Doe” (last name refused) as defendants; and (f) granting such other
and further relief as this Court may deem just and proper.
PRELIMINARY STATEMENT
3. Plaintiff commenced this action to foreclose a mortgage encumbering the real
property known as and by 112-44 180th Street, Jamaica, New York 11433 and further designated
as Block 10303, Lot 47 in Queens County, New York (the “Property”). In response, Defendant
interposed an Answer consisting of 12 affirmative defenses and one counterclaim.
4. The documentary evidence presented on this motion sets forth a prima facie case
to foreclose the subject mortgage. The evidence further demonstrates that Defendant’s affirmative
defenses fail to raise any triable issue of fact. Plaintiff is entitled to summary judgment.
FACTUAL BACKGROUND
5. Defendant received a loan in the original principal amount of $465,500.00 from
ABN Amro Mortgage Group, Inc., a Delaware corporation (“ABN”), that was memorialized by a
note, dated November 7, 2007 (the “Note”). See Affidavit of Alex D. Crossman, Vice President of
Document Execution at Cenlar FSB, sworn to on February 2, 2024 (“Cenlar Aff.”), ¶8; Exhibit
(“Ex.”) C. The loan was secured by a mortgage on the Property, dated November 7, 2007, that
Defendant gave to ABN and which was recorded in the Office of the City Register for the City of
New York (“City Register”) on November 19, 2007 under City Register File Number (“CRFN”)
2007000575331 (the “Mortgage”). See Cenlar Aff. ¶8; Ex. D. The Note and Mortgage are
2
2 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
collectively the “Loan.”
6. ABN, the mortgagee of the Mortgage, subsequently merged with CitiMortgage,
Inc. (“CitiMortgage”) as evidenced by the certificate of merger dated August 21, 2007. See Cenlar
Aff. ¶11; Ex. F.
7. The original “wet ink” Note, endorsed in blank, was physically delivered to
Plaintiff’s document custodian, U.S. Bank, on November 16, 2012. On September 21, 2015, the
Note was released to an external holding facility, and the See Cenlar Aff. ¶10; Ex. E; Affidavit of
Brian Naill, Vice President at U.S. Bank, sworn to on February 26, 2024 (“Custodian Aff.”), ¶4.
Plaintiff’s document custodian, U.S. Bank, possessed the Note on February 2, 2022, the date of
commencement. See Custodian Aff. ¶6; Cenlar Aff. ¶10, Ex. E.
8. The Mortgage was assigned, by assignment of mortgage dated March 18, 2016 and
recorded on March 25, 2016 in the City Register under CRFN 2016000106812 (“2016
Assignment”), from CitiMortgage, successor by merger to ABN, to Plaintiff. See Cenlar Aff. ¶12;
Ex. G.
9. The Mortgage was modified by a loan modification and consolidation agreement
(“Modification”) executed by Defendant on August 29, 2017, in which the unpaid principal
balance was modified to $603,146.25 and secured by the Property. The Modification was recorded
in the City Register on November 14, 2017 under CRFN 2017000419027. The Modification was
consolidated with the Mortgage to form a single lien in the amount of $603,146.25. See Cenlar
Aff. ¶13; Ex. H.
10. Defendant defaulted under the Loan by failing to tender the installment which
became due and payable on October 1, 2019 and subsequent installments. See Cenlar Aff. ¶14;
Ex. I. By reason of this default, Plaintiff elected to accelerate the Mortgage debt and declared all
3
3 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
sums secured thereby to be due and payable. See id.
11. On September 2, 2021, one copy of a 90-day pre-foreclosure notice pursuant to
RPAPL § 1304 (the “90-Day Notice”) was mailed to Defendant via USPS first-class mail, and one
copy via Certified Mail. See Cenlar Aff. ¶20; Ex. N.
12. On September 7, 2021, within three business days of the mailing of the 90-Day
Notice, Plaintiff completed the RPAPL §1306 filing with the New York State Department of
Financial Services. See Cenlar Aff. ¶21; Ex. O.
13. On September 14, 2021, one copy of a 30-day notice of default (the “Notice of
Default”) was mailed to Defendant via United States Postal Service (“USPS”) first-class mail, and
one copy via Certified Mail. See Cenlar Aff. ¶19; Ex M.
PROCEDURAL HISTORY
14. Plaintiff initiated this foreclosure on February 2, 2022 by duly filing a Summons,
Complaint, Certificate of Merit Pursuant to CPLR § 3012-b (“Certificate of Merit”) and Notice of
Pendency of Action (“Notice of Pendency”) (collectively “Complaint Documents”) in the Queens
County Clerk’s Office. True and correct copies of the Complaint Documents are annexed
collectively as Exhibit 1.
15. Plaintiff duly served all defendants with the Complaint Documents and RPAPL
§1303 notice. True and correct copies of the affidavits of service, duly filed, are annexed
collectively as Exhibit 2.
16. Since filing the Notice of Pendency, the Summons and Complaint have not been
amended to affect other property not described in the Notice of Pendency or to extend Plaintiff’s
claim beyond the mortgaged Property.
17. On February 17, 2022, defendant EnerBank USA, through counsel Joseph Shur,
4
4 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
filed a Notice of Appearance with waiver (“Waiver”). A true and correct copy of the Waiver is
annexed as Exhibit 3.
18. On February 23, 2022, Plaintiff served and filed a request for judicial intervention
with foreclosure addendum (the “RJI”). A true and correct copy of the RJI is annexed as Exhibit
4.
19. On May 3, 2022, Defendant filed his Answer with 12 affirmative defenses and one
counterclaim. A true and correct copy of Defendant’s Answer is annexed as Exhibit 5.
20. On June 10, 2022, Plaintiff filed a verified reply (“Reply”) to Defendant’s Answer.
A true and correct copy of Plaintiff’s Reply is annexed as Exhibit 6.
21. The Court conducted multiple foreclosure settlement conferences pursuant to
CPLR § 3408. After the completion of the June 15, 2023 settlement conference, the Court issued
an order releasing the matter (“Release Order”) from settlement conferences. A true and correct
copy of the Release Order is annexed as Exhibit 7.
22. Other than Defendant and defendant Enerbank USA, none of the other defendants
served herein have answered, moved or otherwise appeared. A true and correct copy of the
NYSCEF document list for this action is annexed as Exhibit 8. Upon information and belief, none
of the defendants herein is an infant, absentee or incompetent. Additional service of the summons,
pursuant to CPLR §3215, was made upon the “John Doe” defendants. A true and correct copy of
the CPLR §3215 affirmation of service is annexed as Exhibit 9.
23. Upon information and belief, Defendant does not presently have an active
bankruptcy matter. A true and correct copy of the search result from PACER is annexed as Exhibit
10. Upon information and belief, Defendant is not active in the military service as defined by the
military law and Servicemembers Civil Relief Act of 2003. A true and correct copy of the
5
5 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
affirmation of non-military service, with Department of Defense Manpower Data Center results,
is annexed as Exhibit 11.
24. Upon information and belief, none of the “John Doe” defendants are in the military
service as defined by the military law and Servicemembers Civil Relief Act of 2003. The
undersigned was unable to verify their military status through the Department of Defense
Manpower Data Center, however, because Plaintiff is not aware of their dates of birth and social
security numbers.
ARGUMENT
I. PLAINTIFF IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
25. The Court should grant Plaintiff’s motion for judgment as a matter of law because
this case does not present any genuine issues of material fact. Plaintiff has established a prima
facie case to foreclose by submitting all documentation required under New York law and by
presenting evidence of Defendant’s continued default under her Loan. Furthermore, Defendant’s
Answer fails to set forth any triable issues of fact.
26. “In an action to foreclose a mortgage, a plaintiff establishes its prima facie
entitlement to judgment as a matter of law through the production of the mortgage, the note, and
evidence of the defendant’s default in payment.” Bank of N.Y. Mellon v. Weber, 169 A.D.3d 981.
983 (2d Dep’t 2019). Once the plaintiff has established prima facie proof, the burden shifts to the
defendant, who must then furnish admissible documentary evidence establishing a triable issue of
fact. See Charter One, FSB v. Houston, 300 A.D.2d 429, 430 (2d Dep’t 2002).
27. The defendant’s burden is not satisfied by simply pleading facts. When a party
seeking summary judgment meets its burden by presenting a prima facie case, “[t]he party
opposing the [summary judgment] motion . . . must produce evidentiary proof in admissible form
6
6 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
sufficient to require a trial of material questions of fact on which the opposing claim rests.” Gilbert
v. Fed. Ins., 70 N.Y.2d 966, 967 (1988). Bald, conclusory allegations, even if believable, are not
sufficient. See id; see also Ehrlich v. Am. Moninge, 26 N.Y.2d 255, 259 (1970). Where the
opponent of a properly made summary judgment motion fails to present evidentiary facts sufficient
to raise a triable issue of fact, summary judgment is the proper remedy. See Freedman v. Chem.
Constr. Corp., 43 N.Y.2d 260 (1977).
28. Plaintiff has presented admissible evidence of all three requirements for a prima
facie case to foreclose. Summary judgment is warranted. First, on November 7, 2007, Defendant
duly executed, acknowledged and delivered the Note to ABN. See Cenlar Aff. ¶8; Ex. C. Second,
on the same date, Defendant executed and delivered the Mortgage to ABN. See Cenlar Aff. ¶8;
Ex. D. Defendant’s August 29, 2017 loan modification agreement (“Modification”) was recorded
in the City Register on November 14, 2017. See Cenlar Aff. ¶13; Ex. H. Third, Plaintiff established
Defendant’s continuing default under the Loan. Defendant defaulted by failing to tender the
installment that became due and payable on October 1, 2019 and subsequent installments. See
Cenlar Aff. ¶14; Ex. I. Plaintiff has standing in this action because its document custodian, U.S.
Bank, possessed the “wet ink” Note on February 2, 2022, the date of commencement. See Cenlar
Aff. ¶10; Ex. E; Custodian Aff. ¶6.
29. By producing the Note, Modification, Mortgage and evidence of Defendant’s
default, Plaintiff has met its prima facie burden, shifting the burden to Defendant to establish a
triable issue of fact. See Mishal v. Fiduciary Holdings, 109 A.D.3d 885, 885 (2d Dep’t 2013).
Defendant will not be able to carry his burden since no triable issue of fact exists.
II. DEFENDANT’S ANSWER FAILS TO PRESENT ANY TRIABLE ISSUE OF
FACT.
7
7 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
30. Defendant’s Answer consists of nothing more than general denials, which is
insufficient to defeat summary judgment. See Exhibit 5; Banker’s Trust of Rockland County v.
Keesler, 49 A.D.2d 918 (2d Dep’t 1975).
31. The Court should strike Defendant’s 12 affirmative defenses, dismiss Defendant’s
counterclaim, and grant Plaintiff summary judgment because Defendant failed to plead any factual
allegations. New York is a fact pleading state. Accordingly, every pleader, whether of a complaint
or an affirmative defense, must set forth ultimate facts and not mere conclusions of law. See CPLR
§ 3013; One West Bank, FSB v. Rosenberg, 189 A.D.3d 1600, 1602 (2d Dep’t 2020). Defendant’s
Answer provides no documentary evidence to dispute Plaintiff’s possession of the Note,
Modification, and Mortgage or the existence of the default. See Exhibit 5. Accordingly, Plaintiff
proved its prima facie case and Defendant failed to plead any affirmative defenses with sufficient
specificity to raise a triable issue of fact. Plaintiff is entitled to summary judgment.
A. Defendant’s first affirmative defense, which alleges lack of standing, is
meritless.______________________________________________________
32. Defendant’s first affirmative defense, which alleges lack of standing, is meritless
as Plaintiff has satisfied all of the requirements for standing and is entitled to foreclose.
Defendant’s allegations are contradicted by Plaintiff’s documents.
33. “A plaintiff has standing to maintain a mortgage foreclosure action where it is the
holder or assignee of the underlying note at the time the action is commenced.” U.S. Bank v.
O’Driscoll, 168 A.D.3d 783, 784 (2d Dep’t 2019). The note, and not the mortgage, is the
instrument that conveys standing to foreclose under New York law, and when the note is
transferred, the mortgage passes as incident to the note. See Aurora Loan Servs. v. Taylor, 25
N.Y.3d 355, 361 (2015). “Either a written assignment of the underlying note or the physical
delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer
8
8 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
the obligation, and the mortgage passes with the debt as an inseparable incident.” Dyer Trust
2012-1 v. Global World, Realty, Inc. 140 A.D.3d 827, 828 (2d Dep’t 2016).
34. 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.
JPMorgan Chase Bank Nat’l Assoc. v. Weinberger, 142 A.D.3d 643, 645 (2d Dep’t 2016). A lender
may also establish standing merely by annexing a copy of the properly endorsed note to the
foreclosure complaint to demonstrate possession of the original note at the time of
commencement. See e.g. Deutsche Bank Nat Trust v. Logan, 146 A.D.3d 861, 862-63 (2d Dept.
2017) (holding that “the plaintiff established, prima facie, that it had standing [to foreclose] by
demonstrating that it had physical possession of the note prior to the commencement of the action,
as evidenced by its attachment of the note to the summons and complaint at the time this action
was commenced”).
35. An affidavit submitted by the plaintiff’s loan servicer or document custodian, based
on a review of the business records, is sufficient to establish that the note was physically delivered
to the plaintiff. See Taylor, 25 N.Y.3d at 359-61; Wells Fargo v. Arias, 121 A.D.3d 973, 974 (2d
Dep’t 2014). A plaintiff need not state in its affidavit how it came into possession of the note. See
Taylor, 25 N.Y.3d at 362.
36. Here, Plaintiff sufficiently demonstrated standing to foreclosure. On November 7,
2007, Defendant received the Loan from ABN. See Cenlar Aff. ¶8; Ex. C. The Loan was secured
by the Mortgage on the Property. See Cenlar Aff. ¶8; Ex. D. ABN, the mortgagee of the Mortgage,
subsequently merged with CitiMortgage, Inc., as evidenced by the certificate of merger dated
August 21, 2007, and filed with the State of New York, Department of State, on August 31, 2007.
See Cenlar Aff. ¶11; Ex. F. The Mortgage was assigned, by assignment of mortgage dated March
9
9 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
18, 2016 and recorded on March 25, 2016 in the City Register under CRFN 2016000106812, from
CitiMortgage, Inc., successor by merger to ABN, to Plaintiff. See Cenlar Aff. ¶12; Ex. G.
37. The original “wet ink” Note, endorsed in blank, was physically delivered to
Plaintiff’s document custodian, U.S. Bank, on November 16, 2012. See Cenlar Aff. ¶10; Ex. D;
Custodian Aff. ¶4. Plaintiff’s document custodian, U.S. Bank, possessed the Note on February 2,
2022, the date of commencement. See Custodian Aff. ¶6; Cenlar Aff. ¶10, Ex. E. Further, the
Note, which was endorsed in blank, was annexed to the Complaint, which confers standing on its
own. See Weinberger, 142 A.D.3d at 645 The Court should therefore strike Defendant’s first
affirmative defense.
B. Defendant’s second affirmative defense, which alleges that Plaintiff failed
to state a cause of action, is meritless. ____________
38. Defendant’s second affirmative defense, which alleges that Plaintiff failed to state
a cause of action, fails to raise a triable issue of fact. This allegation is devoid of any merit because
Plaintiff properly plead the nature of Defendant’s default and provided supporting material facts.
39. “In an action to foreclose a mortgage, a plaintiff establishes its prima facie
entitlement to judgment as a matter of law through the production of the mortgage, the note, and
evidence of the defendant’s default in payment.” Bank of N.Y. Mellon, 169 A.D.3d at 983 (citations
omitted). The Complaint clearly alleges the existence of the Note and Mortgage. See Exhibit 1,
¶3-4. The Complaint then alleges that Defendant was obligated to make payments in order to avoid
default. See id. ¶6. Finally, the Complaint alleges that Defendant’s lack of payment since October
1, 2019 is the basis of the default. See id. ¶8. Defendant’s second affirmative defenses should
therefore be dismissed.
C. Defendant’s third affirmative defense, alleging improper service of
process, is meritless. ___________
10
10 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
40. Defendant’s third affirmative defense, alleging improper service of the Complaint,
is meritless as Plaintiff properly served the Complaint. Furthermore, Defendant failed to move for
judgment on this ground within 60 days after answering the Complaint and waived this defense.
41. Personal service upon a natural person may be made:
[B]y delivering the summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or usual place of
abode of the person to be served and by. . .mailing the summons to the person
to be served at his or her last known residence. . .such delivery and mailing to
be effected within twenty days of each other; proof of such service shall be filed
with the clerk of the court designated in the summons within twenty days of
either such delivery or mailing, whichever is effected later[.]
CPLR § 308(2). Plaintiff strictly complied with all three steps (delivery, mailing and filing). See
Exhibit 2; Aurora Loan Services, LLC v. Revivo, 175 A.D.3d 622, 623 (2d Dep’t 2019).
42. A process server’s affidavit of service constitutes prima facie evidence of proper
service. See Deutsche Bank Nat. Trust v. Quinones, 114 A.D.3d 719, 719 (2d Dep’t 2014). A
defendant’s unsubstantiated denial of service or receipt is insufficient to rebut the presumption of
proper service created by the affidavit of service. See id. As stated in the affidavits of service, on
February 7, 2022, Wladimir Noel served the Notice of Commencement Form, Complaint
Documents, §1303 Notice and §1320 Notice on Defendant, by delivering true copies thereof to
Amira “Doe”, co-occupant at Defendant’s principal dwelling place. See Exhibit 2. Further, on
February 10, 2022, Wladimir Noel mailed a copy of the Summons by First-Class Mail to
Defendant. See id.
43. Furthermore, Defendant waived his right to challenge the sufficiency of service of
process by failing to move for judgment on that ground within 60 days after serving his Answer.
See CPLR § 3211(e). If the defendant fails to bring a timely motion for judgment due to improper
service of process, the defense is deemed waived. See U.S. Bank Nat. Ass’n v. Roque, 172 A.D.3d
11
11 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
948, 950 (2d Dep’t 2019). On May 3, 2022, Defendant filed his Answer. See Exhibit 5. Defendant
failed to move for judgment on this defense within 60 days (by July 2, 2022) or any time thereafter,
thereby waiving it. See Exhibit 8. Because Plaintiff satisfied the CPLR §308(2) requirements and
Defendant waived this defense, the Court should strike this affirmative defense.
D. Defendant’s fourth affirmative defense, which alleges the failure to comply
with the Note and Mortgage notice requirements, is meritless.____
44. Defendant’s fourth affirmative defense, which alleges the failure to comply with
the Note and Mortgage notice requirements, fails to raise a triable issue of fact and should be
stricken.
45. Section 15 of the Mortgage states, in pertinent part, that any notice to the borrower
in connection with the Mortgage is considered given to the borrower “when mailed by first class
mail or when actually delivered to my notice address if sent by other means.” Ex. D §15 to Cenlar
Aff. “The notice address is the address of the Property unless I give notice to Lender of a different
address.” Id. “Notice to any one Borrower will be notice to all Borrowers unless Applicable Law
expressly requires otherwise.” Id.
46. The presumption of proper mailing “may be created by either proof of actual
mailing or proof of a standard office practice or procedure designed to ensure that items are
properly addressed and mailed.” Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d
679, 680 (2d Dep’t 2001). The affidavit explains Cenlar’s procedures for preparing and mailing
the 30-day notice of default. See Cenlar Aff. ¶17. Cenlar’s procedure is to mail the notice of
default to the property address by depositing a true copy thereof in a post-paid wrapper, in an
official depository under the exclusive care and custody of the USPS. See id.
47. Plaintiff has complied with all prerequisites, including the Mortgage. Section 22 of
the Mortgage states that the lender may require immediate payment in full, i.e., accelerate the debt,
12
12 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
if: (1) the borrower fails to pay the sums secured by the Note and the Mortgage (or fails to keep
any other promise or agreement made therein); (2) the lender sends the borrower a notice of
default; and (3) the borrower does not timely correct the default stated in the notice. See Ex. D
§22 to Cenlar Aff.
48. Plaintiff satisfied the first condition for demanding immediate payment in full
because Defendant failed to keep his promise. Defendant defaulted by failing to tender the
installment that became due and payable on October 1, 2019 and subsequent installments. See
Cenlar Aff. ¶14; Ex. I. Plaintiff satisfied the second condition for demanding immediate payment
in full by serving Defendant with a compliant notice of default. See Ex. D to Cenlar Aff. Indeed,
the Notice of Default closely mirrors the language used in §22 of the Mortgage. See id.; Ex. D
§22 to Cenlar Aff. Plaintiff properly mailed the Notice of Default to Defendant. The presumption
of proper mailing “may be created by either proof of actual mailing or proof of a standard office
practice or procedure designed to ensure that items are properly addressed and mailed.” Scottsdale
Ins. Co., 286 A.D.2d at 680; (citations omitted). The Cenlar Affidavit demonstrates, through
contemporaneous business records, that on or about September 14, 2021, Plaintiff mailed the
Notice of Default to Defendant. See Cenlar Aff. ¶19; Ex. M.
49. Finally, Plaintiff satisfied the third condition for demanding immediate payment in
full because Defendant failed to correct the default. See Id. Defendant presented no evidence to
refute that Plaintiff complied with the Mortgage’s notice requirements. The Court should therefore
strike Defendant’s fourth affirmative defense.
E. Defendant’s fifth affirmative defense, alleging the failure to provide
pre-foreclosure notices required by RPAPL §1304, is meritless._____
50. Defendant’s fifth affirmative defense, which alleges the failure to provide the
RPAPL §1304 pre-foreclosure notices, is meritless. The evidence demonstrates that Plaintiff
13
13 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
complied with all requirements.
51. A plaintiff in a foreclosure action establishes compliance with the 90-day pre-
foreclosure notice requirement of RPAPL §1304 by “submitting proof of timely, proper service of
a fully compliant RPAPL §1304 notice.” Emigrant Mortg. Co., Inc. v. Persad, 117 A.D.3d 676,
677 (2d Dep’t 2014). “[A] mere denial of receipt is insufficient to raise a triable issue of fact to
rebut a plaintiff’s prima facie evidence of mailing.” Citibank, N.A. v. Conti-Scheurer, 172 A.D.3d
17, 23 (2d Dep’t 2019). The §1304 pre-foreclosure notice shall be given in at least 14-point type,
include certain statutory language and “contain a current list of at least five housing counseling
agencies serving the county where the property is located from the most recent listing available
from department of financial services.” RPAPL §§1304(1),(2).
52. RPAPL §1304 further requires that the notices be sent “by registered or certified
mail and also by first-class mail to the last known address of the borrower, and to the residence
that is the subject of the mortgage.” RPAPL §1304(2). The notices “shall be sent. . .in a separate
envelope from any other mailing or notice.” Id. A plaintiff may prove that it complied by
submitting an affidavit of service or proof of actual mailing. See M&T Bank v. Joseph, 152 A.D.3d
579, 580 (2d Dep’t 2017). Prima facie proof of mailing may be established “by any number of
documents meeting the requirements of the business records exception to the hearsay rule under
CPLR 4518.” Ozcan, 154 A.D.3d at 826.
53. Here, Plaintiff’s 90-Day Notice satisfies §1304’s content requirements. It includes
the necessary language and contains a list of at least five approved housing counseling agencies
serving Queens County where the Property is located. See Cenlar Aff. ¶20; Ex. N. On September
2, 2021, Plaintiff mailed the 90-Day Notice as follows: (1) one copy to Defendant at the Property
via First-Class Mail; and (2) one copy to Defendant at the Property via Certified Mail. See id. The
14
14 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
Cenlar affidavit establishes the foregoing mailings, through contemporaneous business records.
The business records annexed to the Cenlar Affidavit indicate one (1) copy of the 90-Day Notice
was generated and then sent to the Borrower at the Property by first-class mail on September 2,
2021 and two (2) copies of the 90-day notice were also sent to the Borrower at the Property by
certified mail, on September 2, 2021. See Cenlar Aff ¶ 20.The mailings are further confirmed by
the affiant’s personal knowledge of Cenlar’s procedures for the §1304 mailings. See Cenlar Aff.
¶17. Defendant presented no evidence to refute Plaintiff’s compliance with RPAPL §1304. The
Court should therefore strike Defendant’s fifth affirmative defense.
F. Defendant’s sixth affirmative defense, which alleges the failure to comply
with RPAPL §1306, is meritless.____________________________________
54. Defendant’s sixth affirmative defense, which alleges the failure to comply with
RPAPL §1306, fails to present a triable issue of fact, is conclusory, and is rebutted by the evidence.
55. RPAPL §1306 requires that, within three business days of the RPAPL §1304
mailing, the lender shall file certain loan-related information. See RPAPL §1306(1). Here,
Cenlar’s Servicing Records establish that, on September 2, 2021, the 90-Day Notice was mailed
to Defendant. See Cenlar Aff. ¶20; Ex. N. Then, on September 7, 2021, Plaintiff filed the §1306
information with the New York State Department of Financial Services. See Cenlar Aff. ¶21; Ex.
O. The Complaint also asserts compliance with §1306. See Exhibit 1, ¶14. Defendant has failed
to dispute Plaintiff’s compliance. The Court should strike this affirmative defense.
G. Defendant’s seventh affirmative defense, alleging failure to comply with
RPAPL §1303, is meritless. __
56. Defendant’s seventh affirmative defense, which alleges that Plaintiff failed to
comply with the RPAPL §1303 service requirements, fails to set forth a triable issue of fact because
the documentary evidence proves Plaintiff’s compliance.
15
15 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
57. RPAPL §1303 requires that the foreclosing party in a mortgage foreclosure action
involving residential real property provide notice to the mortgagor entitled “Help for Homeowners
in Foreclosure.” See RPAPL §§1303(1),(3). The notice shall be delivered with the summons and
complaint and “shall be in bold, fourteen-point type and shall be printed on colored paper that is
other than the color of the summons and complaint, and the title of the notice shall be in bold,
twenty-point type.” RPAPL §1303(2). A process server’s affidavit of service constitutes prima
facie evidence of proper service required by RPAPL §1303. See. Quinones, 114 A.D.3d at 719.
A defendant’s bare and unsubstantiated denial of service or receipt is insufficient to rebut the
presumption of proper service created by the affidavit of service. See id.
58. Here, Plaintiff’s process server stated in his affidavits of service that on February
7, 2022, he served the Notice of Commencement Form, Summons and Complaint with Notice of
Pendency, CPLR §3012-B Certificate of Merit, §1303 Notice, and §1320 Notice on Defendant, by
delivering true copies thereof with Amira “Doe”, co-occupant at Defendant’s principal dwelling
place. See Exhibit 2. The process server’s affidavits constitute prima facie evidence that Plaintiff
complied with RPAPL § 1303. See HSBC Bank USA, Nat. Ass’n v. Ozcan, 154 A.D.3d 822, 827-
28 (2d Dep’t 2017). Defendant’s seventh affirmative defenses is therefore meritless.
H. Defendant’s eighth and ninth affirmative defenses, which allege violations
of the Real Estate Settlement Procedures Act (“RESPA”), are meritless._
59. Defendant’s seventh and eighth affirmative defenses, which allege that Plaintiff
violated the Real Estate Settlement Procedures Act (“RESPA”), is meritless. Defendant alleges
that Plaintiff’s loan servicer failed to attempt to establish live contact with Defendant, within 36
days of his delinquency, to inform him about the availability of loss mitigation options. Defendant
further alleges that Plaintiff’s loan servicer failed to send Defendant a written notice, within 45
days of his delinquency, that included contact information for the servicer, a description of loss
16
16 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
mitigation options available, information about applying for loss mitigation, and a website listing
housing counselors. Plaintiff’s documentary evidence rebuts Defendant’s allegations about
RESPA violations. Furthermore, any such purported violation is not a defense to foreclosure.
Defendant’s seventh and eighth affirmative defenses should therefore be stricken.
60. An affirmative defense alleging that the plaintiff failed to comply with RESPA does
not provide a valid defense to foreclosure. See CIT. v. Tineo, 2019 WL 6828360, at *5 (E.D.N.Y.
Dec. 13, 2019). Significantly, a RESPA violation does not affect the validity or enforceability of
the foreclosed mortgage. See 12 U.S.C. §2615.
61. Although Defendant alleges violations of RESPA as an affirmative defense rather
than as a counterclaim, any affirmative claims for the alleged violations would be time-barred by
the applicable statute of limitations. See 12 U.S.C. §2614 (one or three years for RESPA claims).
Here, Defendant obtained the Loan on November 7, 2007, but did not file his Answer until May
3, 2022. See Cenlar Aff. ¶8; Ex. C-D; Exhibit 5. Therefore, any such counterclaim is time-barred.
62. Furthermore, the evidence demonstrates that Cenlar did in fact communicate with
Defendant, following his delinquency, in compliance with RESPA, by contacting Borrower
telephonically and in writing, to offer available loss mitigation options. See Cenlar Aff. ¶15-16;
Ex. J-K. Based upon the foregoing, the Court should strike Defendant’s seventh and eighth
affirmative defense.
I. Defendant’s tenth affirmative defense challenging the Certificate of Merit
is meritless. _____________________________________________
63. Defendant’s tenth affirmative defense, which alleges that Plaintiff failed to comply
with the CPLR §3012-b Certificate of Merit requirements, is vague, conclusory, and flatly
contradicted by Plaintiff’s filed Certificate of Merit. See Exhibit 1.
64. CPLR §3012-b requires the plaintiff’s attorney in certain residential foreclosure
17
17 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
actions to file with the complaint a certificate attesting to the merit of the action. See CPLR §3012-
b(a).
65. The Certificate of Merit, signed by Plaintiff’s co-counsel, fully complies with
CPLR §3012-b. See Exhibit 1. Counsel certified that (s)he reviewed the facts and the pertinent
Loan documents. See id. ¶3. Counsel further certified that (s)he consulted about the facts of this
case with Plaintiff’s representative. See id. ¶4. Based on this, counsel was able to certify that there
was a reasonable basis for the commencement of this action and Plaintiff is the creditor entitled to
enforce the Loan documents. See id ¶5. Further, Plaintiff annexed copies of the pertinent loan
documents, including copies of the Note, Mortgage, assignment of mortgage. and Modification to
the Complaint. See Exhibit 1. Accordingly, the Court should strike Defendant’s meritless tenth
affirmative defense.
J. Defendant’s eleventh and twelfth affirmative defenses, which allege
excessive interest and fees, delays in the foreclosure process with respect to
a prior proceeding, and failure to negotiate in good faith, are meritless.___
66. Defendant’s eleventh and twelfth affirmatives defenses, which allege that Plaintiff
unreasonably delayed in filing this action, failed to file a RJI, delayed in the foreclosure process
with respect to a prior proceeding, and/or engaged in other dilatory conduct causing excessive
interest to accrue, should be stricken as they plead conclusions without supporting facts. Defendant
further alleges that the Court should reduce or toll interest pursuant to CPLR §5001(a), however
Defendant has not offered any supporting factual allegations.
67. Affirmative defenses that merely plead conclusions of law without supporting facts,
are insufficient, and should be dismissed. See Diaz v. 297 Schaefer St. Realty Corp., 195 A.D.3d
794 (2d Dep’t 2021); see also CPLR §3211(b). CPLR 5001(a) states that “in an action of an
equitable nature, interest and the rate and date from which it shall be computed shall be in the
18
18 of 24
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024
court's discretion. Further, Defendant’s assertion of the foregoing affirmative defenses, which are
factually inaccurate, does not prevent Plaintiff from establishing a prima facie case to foreclose.
Even if Plaintiff delayed in the foreclosure process, which Plaintiff denies, such delay would not
provide a complete defense to foreclosure. At most, and only if Defendant was truly prejudiced,
the delay might entitle Defendant to equitable relief, such as the tolling of interest commensurate
with the period of delay. See, e.g., BAC Home Loan Serv. L.P. v. Jackson, 159 A.D.3d 861, 862-
63 (2d Dep’t 2018).
68. Here, Defendant failed to include any facts relating to specific delays or dilatory
conduct. Defendant’s allegation of general delay is not supported by any dates or other facts such
that Plaintiff can effectively respond on the purported merits. Additionally, Defendant’s
allegations about a RJI are unfounded as a RJI was filed on February 23, 2022. See Exhibit 4.
Furthermore, contrary to Defendan
Preview
FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------x U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR CMSI REMIC SERIES 2008-01-REMIC PASS- THROUGH CERTIFICATES SERIES 2008-1, Index No. 702411/2022 Plaintiff, -against- AFFIRMATION IN SUPPORT OF PLAINTIFF’S MOTION FOR ABDUL ELCOCK A/K/A ABDUL J. ELCOCK; SUMMARY JUDGMENT CITIBANK (SOUTH DAKOTA) N.A.; ENERBANK USA; AND RELATED RELIEF FIA CARD SERVICES, N.A.; EVERBANK; JOHN DOE Mortgaged Premises: (SAID NAME BEING FICTITIOUS TO REPRESENT 112-44 180th Street UNKNOWN TENANTS/OCCUPANTS OF THE SUBJECT Jamaica, New York 11433 PROPERTY AND ANY OTHER PARTY OR ENTITY OF ANY KIND, IF ANY, HAVING OR CLAIMING AN Block: 10303; Lot 47 INTEREST OR LIEN UPON THE MORTGAGED PROPERTY) Defendants. ----------------------------------------------------------------------x EMILIO LAMANNA, ESQ., an attorney duly admitted to practice law before the courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. I am an attorney of the law firm of Houser LLP, attorneys for plaintiff, U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR CMSI REMIC SERIES 2008-01-REMIC PASS-THROUGH CERTIFICATES SERIES 2008-1 (“Plaintiff”), in this action and I am fully familiar with the facts and circumstances of this case based upon my review of the file maintained by this firm and communications with Plaintiff’s representatives. 2. This Affirmation is submitted in support of Plaintiff’s application for an Order: (a) granting Plaintiff summary judgment, pursuant to CPLR §3212, against defendant Abdul Elcock a/k/a Abdul J. Elcock (“Defendant”) and defendant EnerBank USA; (b) striking and dismissing the Verified Answer with affirmative defenses and counterclaims (“Answer”) interposed by 1 1 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 Defendant and deeming it an appearance and waiver in foreclosure; (c) granting Plaintiff a default judgment, pursuant to CPLR §3215, against all non-answering and non-appearing defendants; (d) appointing a Referee, pursuant to RPAPL §1321, to compute the sums due and owing to Plaintiff; (e) amending the case caption to remove the “John Doe” defendants and instead substituting in Yulanda Mann and Amira “Doe” (last name refused) as defendants; and (f) granting such other and further relief as this Court may deem just and proper. PRELIMINARY STATEMENT 3. Plaintiff commenced this action to foreclose a mortgage encumbering the real property known as and by 112-44 180th Street, Jamaica, New York 11433 and further designated as Block 10303, Lot 47 in Queens County, New York (the “Property”). In response, Defendant interposed an Answer consisting of 12 affirmative defenses and one counterclaim. 4. The documentary evidence presented on this motion sets forth a prima facie case to foreclose the subject mortgage. The evidence further demonstrates that Defendant’s affirmative defenses fail to raise any triable issue of fact. Plaintiff is entitled to summary judgment. FACTUAL BACKGROUND 5. Defendant received a loan in the original principal amount of $465,500.00 from ABN Amro Mortgage Group, Inc., a Delaware corporation (“ABN”), that was memorialized by a note, dated November 7, 2007 (the “Note”). See Affidavit of Alex D. Crossman, Vice President of Document Execution at Cenlar FSB, sworn to on February 2, 2024 (“Cenlar Aff.”), ¶8; Exhibit (“Ex.”) C. The loan was secured by a mortgage on the Property, dated November 7, 2007, that Defendant gave to ABN and which was recorded in the Office of the City Register for the City of New York (“City Register”) on November 19, 2007 under City Register File Number (“CRFN”) 2007000575331 (the “Mortgage”). See Cenlar Aff. ¶8; Ex. D. The Note and Mortgage are 2 2 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 collectively the “Loan.” 6. ABN, the mortgagee of the Mortgage, subsequently merged with CitiMortgage, Inc. (“CitiMortgage”) as evidenced by the certificate of merger dated August 21, 2007. See Cenlar Aff. ¶11; Ex. F. 7. The original “wet ink” Note, endorsed in blank, was physically delivered to Plaintiff’s document custodian, U.S. Bank, on November 16, 2012. On September 21, 2015, the Note was released to an external holding facility, and the See Cenlar Aff. ¶10; Ex. E; Affidavit of Brian Naill, Vice President at U.S. Bank, sworn to on February 26, 2024 (“Custodian Aff.”), ¶4. Plaintiff’s document custodian, U.S. Bank, possessed the Note on February 2, 2022, the date of commencement. See Custodian Aff. ¶6; Cenlar Aff. ¶10, Ex. E. 8. The Mortgage was assigned, by assignment of mortgage dated March 18, 2016 and recorded on March 25, 2016 in the City Register under CRFN 2016000106812 (“2016 Assignment”), from CitiMortgage, successor by merger to ABN, to Plaintiff. See Cenlar Aff. ¶12; Ex. G. 9. The Mortgage was modified by a loan modification and consolidation agreement (“Modification”) executed by Defendant on August 29, 2017, in which the unpaid principal balance was modified to $603,146.25 and secured by the Property. The Modification was recorded in the City Register on November 14, 2017 under CRFN 2017000419027. The Modification was consolidated with the Mortgage to form a single lien in the amount of $603,146.25. See Cenlar Aff. ¶13; Ex. H. 10. Defendant defaulted under the Loan by failing to tender the installment which became due and payable on October 1, 2019 and subsequent installments. See Cenlar Aff. ¶14; Ex. I. By reason of this default, Plaintiff elected to accelerate the Mortgage debt and declared all 3 3 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 sums secured thereby to be due and payable. See id. 11. On September 2, 2021, one copy of a 90-day pre-foreclosure notice pursuant to RPAPL § 1304 (the “90-Day Notice”) was mailed to Defendant via USPS first-class mail, and one copy via Certified Mail. See Cenlar Aff. ¶20; Ex. N. 12. On September 7, 2021, within three business days of the mailing of the 90-Day Notice, Plaintiff completed the RPAPL §1306 filing with the New York State Department of Financial Services. See Cenlar Aff. ¶21; Ex. O. 13. On September 14, 2021, one copy of a 30-day notice of default (the “Notice of Default”) was mailed to Defendant via United States Postal Service (“USPS”) first-class mail, and one copy via Certified Mail. See Cenlar Aff. ¶19; Ex M. PROCEDURAL HISTORY 14. Plaintiff initiated this foreclosure on February 2, 2022 by duly filing a Summons, Complaint, Certificate of Merit Pursuant to CPLR § 3012-b (“Certificate of Merit”) and Notice of Pendency of Action (“Notice of Pendency”) (collectively “Complaint Documents”) in the Queens County Clerk’s Office. True and correct copies of the Complaint Documents are annexed collectively as Exhibit 1. 15. Plaintiff duly served all defendants with the Complaint Documents and RPAPL §1303 notice. True and correct copies of the affidavits of service, duly filed, are annexed collectively as Exhibit 2. 16. Since filing the Notice of Pendency, the Summons and Complaint have not been amended to affect other property not described in the Notice of Pendency or to extend Plaintiff’s claim beyond the mortgaged Property. 17. On February 17, 2022, defendant EnerBank USA, through counsel Joseph Shur, 4 4 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 filed a Notice of Appearance with waiver (“Waiver”). A true and correct copy of the Waiver is annexed as Exhibit 3. 18. On February 23, 2022, Plaintiff served and filed a request for judicial intervention with foreclosure addendum (the “RJI”). A true and correct copy of the RJI is annexed as Exhibit 4. 19. On May 3, 2022, Defendant filed his Answer with 12 affirmative defenses and one counterclaim. A true and correct copy of Defendant’s Answer is annexed as Exhibit 5. 20. On June 10, 2022, Plaintiff filed a verified reply (“Reply”) to Defendant’s Answer. A true and correct copy of Plaintiff’s Reply is annexed as Exhibit 6. 21. The Court conducted multiple foreclosure settlement conferences pursuant to CPLR § 3408. After the completion of the June 15, 2023 settlement conference, the Court issued an order releasing the matter (“Release Order”) from settlement conferences. A true and correct copy of the Release Order is annexed as Exhibit 7. 22. Other than Defendant and defendant Enerbank USA, none of the other defendants served herein have answered, moved or otherwise appeared. A true and correct copy of the NYSCEF document list for this action is annexed as Exhibit 8. Upon information and belief, none of the defendants herein is an infant, absentee or incompetent. Additional service of the summons, pursuant to CPLR §3215, was made upon the “John Doe” defendants. A true and correct copy of the CPLR §3215 affirmation of service is annexed as Exhibit 9. 23. Upon information and belief, Defendant does not presently have an active bankruptcy matter. A true and correct copy of the search result from PACER is annexed as Exhibit 10. Upon information and belief, Defendant is not active in the military service as defined by the military law and Servicemembers Civil Relief Act of 2003. A true and correct copy of the 5 5 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 affirmation of non-military service, with Department of Defense Manpower Data Center results, is annexed as Exhibit 11. 24. Upon information and belief, none of the “John Doe” defendants are in the military service as defined by the military law and Servicemembers Civil Relief Act of 2003. The undersigned was unable to verify their military status through the Department of Defense Manpower Data Center, however, because Plaintiff is not aware of their dates of birth and social security numbers. ARGUMENT I. PLAINTIFF IS ENTITLED TO JUDGMENT AS A MATTER OF LAW 25. The Court should grant Plaintiff’s motion for judgment as a matter of law because this case does not present any genuine issues of material fact. Plaintiff has established a prima facie case to foreclose by submitting all documentation required under New York law and by presenting evidence of Defendant’s continued default under her Loan. Furthermore, Defendant’s Answer fails to set forth any triable issues of fact. 26. “In an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the note, and evidence of the defendant’s default in payment.” Bank of N.Y. Mellon v. Weber, 169 A.D.3d 981. 983 (2d Dep’t 2019). Once the plaintiff has established prima facie proof, the burden shifts to the defendant, who must then furnish admissible documentary evidence establishing a triable issue of fact. See Charter One, FSB v. Houston, 300 A.D.2d 429, 430 (2d Dep’t 2002). 27. The defendant’s burden is not satisfied by simply pleading facts. When a party seeking summary judgment meets its burden by presenting a prima facie case, “[t]he party opposing the [summary judgment] motion . . . must produce evidentiary proof in admissible form 6 6 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 sufficient to require a trial of material questions of fact on which the opposing claim rests.” Gilbert v. Fed. Ins., 70 N.Y.2d 966, 967 (1988). Bald, conclusory allegations, even if believable, are not sufficient. See id; see also Ehrlich v. Am. Moninge, 26 N.Y.2d 255, 259 (1970). Where the opponent of a properly made summary judgment motion fails to present evidentiary facts sufficient to raise a triable issue of fact, summary judgment is the proper remedy. See Freedman v. Chem. Constr. Corp., 43 N.Y.2d 260 (1977). 28. Plaintiff has presented admissible evidence of all three requirements for a prima facie case to foreclose. Summary judgment is warranted. First, on November 7, 2007, Defendant duly executed, acknowledged and delivered the Note to ABN. See Cenlar Aff. ¶8; Ex. C. Second, on the same date, Defendant executed and delivered the Mortgage to ABN. See Cenlar Aff. ¶8; Ex. D. Defendant’s August 29, 2017 loan modification agreement (“Modification”) was recorded in the City Register on November 14, 2017. See Cenlar Aff. ¶13; Ex. H. Third, Plaintiff established Defendant’s continuing default under the Loan. Defendant defaulted by failing to tender the installment that became due and payable on October 1, 2019 and subsequent installments. See Cenlar Aff. ¶14; Ex. I. Plaintiff has standing in this action because its document custodian, U.S. Bank, possessed the “wet ink” Note on February 2, 2022, the date of commencement. See Cenlar Aff. ¶10; Ex. E; Custodian Aff. ¶6. 29. By producing the Note, Modification, Mortgage and evidence of Defendant’s default, Plaintiff has met its prima facie burden, shifting the burden to Defendant to establish a triable issue of fact. See Mishal v. Fiduciary Holdings, 109 A.D.3d 885, 885 (2d Dep’t 2013). Defendant will not be able to carry his burden since no triable issue of fact exists. II. DEFENDANT’S ANSWER FAILS TO PRESENT ANY TRIABLE ISSUE OF FACT. 7 7 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 30. Defendant’s Answer consists of nothing more than general denials, which is insufficient to defeat summary judgment. See Exhibit 5; Banker’s Trust of Rockland County v. Keesler, 49 A.D.2d 918 (2d Dep’t 1975). 31. The Court should strike Defendant’s 12 affirmative defenses, dismiss Defendant’s counterclaim, and grant Plaintiff summary judgment because Defendant failed to plead any factual allegations. New York is a fact pleading state. Accordingly, every pleader, whether of a complaint or an affirmative defense, must set forth ultimate facts and not mere conclusions of law. See CPLR § 3013; One West Bank, FSB v. Rosenberg, 189 A.D.3d 1600, 1602 (2d Dep’t 2020). Defendant’s Answer provides no documentary evidence to dispute Plaintiff’s possession of the Note, Modification, and Mortgage or the existence of the default. See Exhibit 5. Accordingly, Plaintiff proved its prima facie case and Defendant failed to plead any affirmative defenses with sufficient specificity to raise a triable issue of fact. Plaintiff is entitled to summary judgment. A. Defendant’s first affirmative defense, which alleges lack of standing, is meritless.______________________________________________________ 32. Defendant’s first affirmative defense, which alleges lack of standing, is meritless as Plaintiff has satisfied all of the requirements for standing and is entitled to foreclose. Defendant’s allegations are contradicted by Plaintiff’s documents. 33. “A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced.” U.S. Bank v. O’Driscoll, 168 A.D.3d 783, 784 (2d Dep’t 2019). The note, and not the mortgage, is the instrument that conveys standing to foreclose under New York law, and when the note is transferred, the mortgage passes as incident to the note. See Aurora Loan Servs. v. Taylor, 25 N.Y.3d 355, 361 (2015). “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer 8 8 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 the obligation, and the mortgage passes with the debt as an inseparable incident.” Dyer Trust 2012-1 v. Global World, Realty, Inc. 140 A.D.3d 827, 828 (2d Dep’t 2016). 34. 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. JPMorgan Chase Bank Nat’l Assoc. v. Weinberger, 142 A.D.3d 643, 645 (2d Dep’t 2016). A lender may also establish standing merely by annexing a copy of the properly endorsed note to the foreclosure complaint to demonstrate possession of the original note at the time of commencement. See e.g. Deutsche Bank Nat Trust v. Logan, 146 A.D.3d 861, 862-63 (2d Dept. 2017) (holding that “the plaintiff established, prima facie, that it had standing [to foreclose] by demonstrating that it had physical possession of the note prior to the commencement of the action, as evidenced by its attachment of the note to the summons and complaint at the time this action was commenced”). 35. An affidavit submitted by the plaintiff’s loan servicer or document custodian, based on a review of the business records, is sufficient to establish that the note was physically delivered to the plaintiff. See Taylor, 25 N.Y.3d at 359-61; Wells Fargo v. Arias, 121 A.D.3d 973, 974 (2d Dep’t 2014). A plaintiff need not state in its affidavit how it came into possession of the note. See Taylor, 25 N.Y.3d at 362. 36. Here, Plaintiff sufficiently demonstrated standing to foreclosure. On November 7, 2007, Defendant received the Loan from ABN. See Cenlar Aff. ¶8; Ex. C. The Loan was secured by the Mortgage on the Property. See Cenlar Aff. ¶8; Ex. D. ABN, the mortgagee of the Mortgage, subsequently merged with CitiMortgage, Inc., as evidenced by the certificate of merger dated August 21, 2007, and filed with the State of New York, Department of State, on August 31, 2007. See Cenlar Aff. ¶11; Ex. F. The Mortgage was assigned, by assignment of mortgage dated March 9 9 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 18, 2016 and recorded on March 25, 2016 in the City Register under CRFN 2016000106812, from CitiMortgage, Inc., successor by merger to ABN, to Plaintiff. See Cenlar Aff. ¶12; Ex. G. 37. The original “wet ink” Note, endorsed in blank, was physically delivered to Plaintiff’s document custodian, U.S. Bank, on November 16, 2012. See Cenlar Aff. ¶10; Ex. D; Custodian Aff. ¶4. Plaintiff’s document custodian, U.S. Bank, possessed the Note on February 2, 2022, the date of commencement. See Custodian Aff. ¶6; Cenlar Aff. ¶10, Ex. E. Further, the Note, which was endorsed in blank, was annexed to the Complaint, which confers standing on its own. See Weinberger, 142 A.D.3d at 645 The Court should therefore strike Defendant’s first affirmative defense. B. Defendant’s second affirmative defense, which alleges that Plaintiff failed to state a cause of action, is meritless. ____________ 38. Defendant’s second affirmative defense, which alleges that Plaintiff failed to state a cause of action, fails to raise a triable issue of fact. This allegation is devoid of any merit because Plaintiff properly plead the nature of Defendant’s default and provided supporting material facts. 39. “In an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the note, and evidence of the defendant’s default in payment.” Bank of N.Y. Mellon, 169 A.D.3d at 983 (citations omitted). The Complaint clearly alleges the existence of the Note and Mortgage. See Exhibit 1, ¶3-4. The Complaint then alleges that Defendant was obligated to make payments in order to avoid default. See id. ¶6. Finally, the Complaint alleges that Defendant’s lack of payment since October 1, 2019 is the basis of the default. See id. ¶8. Defendant’s second affirmative defenses should therefore be dismissed. C. Defendant’s third affirmative defense, alleging improper service of process, is meritless. ___________ 10 10 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 40. Defendant’s third affirmative defense, alleging improper service of the Complaint, is meritless as Plaintiff properly served the Complaint. Furthermore, Defendant failed to move for judgment on this ground within 60 days after answering the Complaint and waived this defense. 41. Personal service upon a natural person may be made: [B]y delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by. . .mailing the summons to the person to be served at his or her last known residence. . .such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later[.] CPLR § 308(2). Plaintiff strictly complied with all three steps (delivery, mailing and filing). See Exhibit 2; Aurora Loan Services, LLC v. Revivo, 175 A.D.3d 622, 623 (2d Dep’t 2019). 42. A process server’s affidavit of service constitutes prima facie evidence of proper service. See Deutsche Bank Nat. Trust v. Quinones, 114 A.D.3d 719, 719 (2d Dep’t 2014). A defendant’s unsubstantiated denial of service or receipt is insufficient to rebut the presumption of proper service created by the affidavit of service. See id. As stated in the affidavits of service, on February 7, 2022, Wladimir Noel served the Notice of Commencement Form, Complaint Documents, §1303 Notice and §1320 Notice on Defendant, by delivering true copies thereof to Amira “Doe”, co-occupant at Defendant’s principal dwelling place. See Exhibit 2. Further, on February 10, 2022, Wladimir Noel mailed a copy of the Summons by First-Class Mail to Defendant. See id. 43. Furthermore, Defendant waived his right to challenge the sufficiency of service of process by failing to move for judgment on that ground within 60 days after serving his Answer. See CPLR § 3211(e). If the defendant fails to bring a timely motion for judgment due to improper service of process, the defense is deemed waived. See U.S. Bank Nat. Ass’n v. Roque, 172 A.D.3d 11 11 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 948, 950 (2d Dep’t 2019). On May 3, 2022, Defendant filed his Answer. See Exhibit 5. Defendant failed to move for judgment on this defense within 60 days (by July 2, 2022) or any time thereafter, thereby waiving it. See Exhibit 8. Because Plaintiff satisfied the CPLR §308(2) requirements and Defendant waived this defense, the Court should strike this affirmative defense. D. Defendant’s fourth affirmative defense, which alleges the failure to comply with the Note and Mortgage notice requirements, is meritless.____ 44. Defendant’s fourth affirmative defense, which alleges the failure to comply with the Note and Mortgage notice requirements, fails to raise a triable issue of fact and should be stricken. 45. Section 15 of the Mortgage states, in pertinent part, that any notice to the borrower in connection with the Mortgage is considered given to the borrower “when mailed by first class mail or when actually delivered to my notice address if sent by other means.” Ex. D §15 to Cenlar Aff. “The notice address is the address of the Property unless I give notice to Lender of a different address.” Id. “Notice to any one Borrower will be notice to all Borrowers unless Applicable Law expressly requires otherwise.” Id. 46. The presumption of proper mailing “may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 680 (2d Dep’t 2001). The affidavit explains Cenlar’s procedures for preparing and mailing the 30-day notice of default. See Cenlar Aff. ¶17. Cenlar’s procedure is to mail the notice of default to the property address by depositing a true copy thereof in a post-paid wrapper, in an official depository under the exclusive care and custody of the USPS. See id. 47. Plaintiff has complied with all prerequisites, including the Mortgage. Section 22 of the Mortgage states that the lender may require immediate payment in full, i.e., accelerate the debt, 12 12 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 if: (1) the borrower fails to pay the sums secured by the Note and the Mortgage (or fails to keep any other promise or agreement made therein); (2) the lender sends the borrower a notice of default; and (3) the borrower does not timely correct the default stated in the notice. See Ex. D §22 to Cenlar Aff. 48. Plaintiff satisfied the first condition for demanding immediate payment in full because Defendant failed to keep his promise. Defendant defaulted by failing to tender the installment that became due and payable on October 1, 2019 and subsequent installments. See Cenlar Aff. ¶14; Ex. I. Plaintiff satisfied the second condition for demanding immediate payment in full by serving Defendant with a compliant notice of default. See Ex. D to Cenlar Aff. Indeed, the Notice of Default closely mirrors the language used in §22 of the Mortgage. See id.; Ex. D §22 to Cenlar Aff. Plaintiff properly mailed the Notice of Default to Defendant. The presumption of proper mailing “may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” Scottsdale Ins. Co., 286 A.D.2d at 680; (citations omitted). The Cenlar Affidavit demonstrates, through contemporaneous business records, that on or about September 14, 2021, Plaintiff mailed the Notice of Default to Defendant. See Cenlar Aff. ¶19; Ex. M. 49. Finally, Plaintiff satisfied the third condition for demanding immediate payment in full because Defendant failed to correct the default. See Id. Defendant presented no evidence to refute that Plaintiff complied with the Mortgage’s notice requirements. The Court should therefore strike Defendant’s fourth affirmative defense. E. Defendant’s fifth affirmative defense, alleging the failure to provide pre-foreclosure notices required by RPAPL §1304, is meritless._____ 50. Defendant’s fifth affirmative defense, which alleges the failure to provide the RPAPL §1304 pre-foreclosure notices, is meritless. The evidence demonstrates that Plaintiff 13 13 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 complied with all requirements. 51. A plaintiff in a foreclosure action establishes compliance with the 90-day pre- foreclosure notice requirement of RPAPL §1304 by “submitting proof of timely, proper service of a fully compliant RPAPL §1304 notice.” Emigrant Mortg. Co., Inc. v. Persad, 117 A.D.3d 676, 677 (2d Dep’t 2014). “[A] mere denial of receipt is insufficient to raise a triable issue of fact to rebut a plaintiff’s prima facie evidence of mailing.” Citibank, N.A. v. Conti-Scheurer, 172 A.D.3d 17, 23 (2d Dep’t 2019). The §1304 pre-foreclosure notice shall be given in at least 14-point type, include certain statutory language and “contain a current list of at least five housing counseling agencies serving the county where the property is located from the most recent listing available from department of financial services.” RPAPL §§1304(1),(2). 52. RPAPL §1304 further requires that the notices be sent “by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage.” RPAPL §1304(2). The notices “shall be sent. . .in a separate envelope from any other mailing or notice.” Id. A plaintiff may prove that it complied by submitting an affidavit of service or proof of actual mailing. See M&T Bank v. Joseph, 152 A.D.3d 579, 580 (2d Dep’t 2017). Prima facie proof of mailing may be established “by any number of documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518.” Ozcan, 154 A.D.3d at 826. 53. Here, Plaintiff’s 90-Day Notice satisfies §1304’s content requirements. It includes the necessary language and contains a list of at least five approved housing counseling agencies serving Queens County where the Property is located. See Cenlar Aff. ¶20; Ex. N. On September 2, 2021, Plaintiff mailed the 90-Day Notice as follows: (1) one copy to Defendant at the Property via First-Class Mail; and (2) one copy to Defendant at the Property via Certified Mail. See id. The 14 14 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 Cenlar affidavit establishes the foregoing mailings, through contemporaneous business records. The business records annexed to the Cenlar Affidavit indicate one (1) copy of the 90-Day Notice was generated and then sent to the Borrower at the Property by first-class mail on September 2, 2021 and two (2) copies of the 90-day notice were also sent to the Borrower at the Property by certified mail, on September 2, 2021. See Cenlar Aff ¶ 20.The mailings are further confirmed by the affiant’s personal knowledge of Cenlar’s procedures for the §1304 mailings. See Cenlar Aff. ¶17. Defendant presented no evidence to refute Plaintiff’s compliance with RPAPL §1304. The Court should therefore strike Defendant’s fifth affirmative defense. F. Defendant’s sixth affirmative defense, which alleges the failure to comply with RPAPL §1306, is meritless.____________________________________ 54. Defendant’s sixth affirmative defense, which alleges the failure to comply with RPAPL §1306, fails to present a triable issue of fact, is conclusory, and is rebutted by the evidence. 55. RPAPL §1306 requires that, within three business days of the RPAPL §1304 mailing, the lender shall file certain loan-related information. See RPAPL §1306(1). Here, Cenlar’s Servicing Records establish that, on September 2, 2021, the 90-Day Notice was mailed to Defendant. See Cenlar Aff. ¶20; Ex. N. Then, on September 7, 2021, Plaintiff filed the §1306 information with the New York State Department of Financial Services. See Cenlar Aff. ¶21; Ex. O. The Complaint also asserts compliance with §1306. See Exhibit 1, ¶14. Defendant has failed to dispute Plaintiff’s compliance. The Court should strike this affirmative defense. G. Defendant’s seventh affirmative defense, alleging failure to comply with RPAPL §1303, is meritless. __ 56. Defendant’s seventh affirmative defense, which alleges that Plaintiff failed to comply with the RPAPL §1303 service requirements, fails to set forth a triable issue of fact because the documentary evidence proves Plaintiff’s compliance. 15 15 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 57. RPAPL §1303 requires that the foreclosing party in a mortgage foreclosure action involving residential real property provide notice to the mortgagor entitled “Help for Homeowners in Foreclosure.” See RPAPL §§1303(1),(3). The notice shall be delivered with the summons and complaint and “shall be in bold, fourteen-point type and shall be printed on colored paper that is other than the color of the summons and complaint, and the title of the notice shall be in bold, twenty-point type.” RPAPL §1303(2). A process server’s affidavit of service constitutes prima facie evidence of proper service required by RPAPL §1303. See. Quinones, 114 A.D.3d at 719. A defendant’s bare and unsubstantiated denial of service or receipt is insufficient to rebut the presumption of proper service created by the affidavit of service. See id. 58. Here, Plaintiff’s process server stated in his affidavits of service that on February 7, 2022, he served the Notice of Commencement Form, Summons and Complaint with Notice of Pendency, CPLR §3012-B Certificate of Merit, §1303 Notice, and §1320 Notice on Defendant, by delivering true copies thereof with Amira “Doe”, co-occupant at Defendant’s principal dwelling place. See Exhibit 2. The process server’s affidavits constitute prima facie evidence that Plaintiff complied with RPAPL § 1303. See HSBC Bank USA, Nat. Ass’n v. Ozcan, 154 A.D.3d 822, 827- 28 (2d Dep’t 2017). Defendant’s seventh affirmative defenses is therefore meritless. H. Defendant’s eighth and ninth affirmative defenses, which allege violations of the Real Estate Settlement Procedures Act (“RESPA”), are meritless._ 59. Defendant’s seventh and eighth affirmative defenses, which allege that Plaintiff violated the Real Estate Settlement Procedures Act (“RESPA”), is meritless. Defendant alleges that Plaintiff’s loan servicer failed to attempt to establish live contact with Defendant, within 36 days of his delinquency, to inform him about the availability of loss mitigation options. Defendant further alleges that Plaintiff’s loan servicer failed to send Defendant a written notice, within 45 days of his delinquency, that included contact information for the servicer, a description of loss 16 16 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 mitigation options available, information about applying for loss mitigation, and a website listing housing counselors. Plaintiff’s documentary evidence rebuts Defendant’s allegations about RESPA violations. Furthermore, any such purported violation is not a defense to foreclosure. Defendant’s seventh and eighth affirmative defenses should therefore be stricken. 60. An affirmative defense alleging that the plaintiff failed to comply with RESPA does not provide a valid defense to foreclosure. See CIT. v. Tineo, 2019 WL 6828360, at *5 (E.D.N.Y. Dec. 13, 2019). Significantly, a RESPA violation does not affect the validity or enforceability of the foreclosed mortgage. See 12 U.S.C. §2615. 61. Although Defendant alleges violations of RESPA as an affirmative defense rather than as a counterclaim, any affirmative claims for the alleged violations would be time-barred by the applicable statute of limitations. See 12 U.S.C. §2614 (one or three years for RESPA claims). Here, Defendant obtained the Loan on November 7, 2007, but did not file his Answer until May 3, 2022. See Cenlar Aff. ¶8; Ex. C-D; Exhibit 5. Therefore, any such counterclaim is time-barred. 62. Furthermore, the evidence demonstrates that Cenlar did in fact communicate with Defendant, following his delinquency, in compliance with RESPA, by contacting Borrower telephonically and in writing, to offer available loss mitigation options. See Cenlar Aff. ¶15-16; Ex. J-K. Based upon the foregoing, the Court should strike Defendant’s seventh and eighth affirmative defense. I. Defendant’s tenth affirmative defense challenging the Certificate of Merit is meritless. _____________________________________________ 63. Defendant’s tenth affirmative defense, which alleges that Plaintiff failed to comply with the CPLR §3012-b Certificate of Merit requirements, is vague, conclusory, and flatly contradicted by Plaintiff’s filed Certificate of Merit. See Exhibit 1. 64. CPLR §3012-b requires the plaintiff’s attorney in certain residential foreclosure 17 17 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 actions to file with the complaint a certificate attesting to the merit of the action. See CPLR §3012- b(a). 65. The Certificate of Merit, signed by Plaintiff’s co-counsel, fully complies with CPLR §3012-b. See Exhibit 1. Counsel certified that (s)he reviewed the facts and the pertinent Loan documents. See id. ¶3. Counsel further certified that (s)he consulted about the facts of this case with Plaintiff’s representative. See id. ¶4. Based on this, counsel was able to certify that there was a reasonable basis for the commencement of this action and Plaintiff is the creditor entitled to enforce the Loan documents. See id ¶5. Further, Plaintiff annexed copies of the pertinent loan documents, including copies of the Note, Mortgage, assignment of mortgage. and Modification to the Complaint. See Exhibit 1. Accordingly, the Court should strike Defendant’s meritless tenth affirmative defense. J. Defendant’s eleventh and twelfth affirmative defenses, which allege excessive interest and fees, delays in the foreclosure process with respect to a prior proceeding, and failure to negotiate in good faith, are meritless.___ 66. Defendant’s eleventh and twelfth affirmatives defenses, which allege that Plaintiff unreasonably delayed in filing this action, failed to file a RJI, delayed in the foreclosure process with respect to a prior proceeding, and/or engaged in other dilatory conduct causing excessive interest to accrue, should be stricken as they plead conclusions without supporting facts. Defendant further alleges that the Court should reduce or toll interest pursuant to CPLR §5001(a), however Defendant has not offered any supporting factual allegations. 67. Affirmative defenses that merely plead conclusions of law without supporting facts, are insufficient, and should be dismissed. See Diaz v. 297 Schaefer St. Realty Corp., 195 A.D.3d 794 (2d Dep’t 2021); see also CPLR §3211(b). CPLR 5001(a) states that “in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the 18 18 of 24 FILED: QUEENS COUNTY CLERK 02/27/2024 10:35 AM INDEX NO. 702411/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/27/2024 court's discretion. Further, Defendant’s assertion of the foregoing affirmative defenses, which are factually inaccurate, does not prevent Plaintiff from establishing a prima facie case to foreclose. Even if Plaintiff delayed in the foreclosure process, which Plaintiff denies, such delay would not provide a complete defense to foreclosure. At most, and only if Defendant was truly prejudiced, the delay might entitle Defendant to equitable relief, such as the tolling of interest commensurate with the period of delay. See, e.g., BAC Home Loan Serv. L.P. v. Jackson, 159 A.D.3d 861, 862- 63 (2d Dep’t 2018). 68. Here, Defendant failed to include any facts relating to specific delays or dilatory conduct. Defendant’s allegation of general delay is not supported by any dates or other facts such that Plaintiff can effectively respond on the purported merits. Additionally, Defendant’s allegations about a RJI are unfounded as a RJI was filed on February 23, 2022. See Exhibit 4. Furthermore, contrary to Defendan