Preview
FILED: RICHMOND COUNTY CLERK 12/07/2020 06:44 PM INDEX NO. 135548/2018
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/07/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
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DEUTSCHE BANK NATIONAL TRUST COMPANY, :
AS TRUSTEE FOR AMERIQUEST MORTGAGE : Index No. 135548/2018
SECURITIES INC., ASSET-BACKED PASS- :
THROUGH CERTIFICATES, SERIES 2005-R7, :
:
Plaintiff,
:
-against-
:
KEN WEBER A/K/A KENNETH J. WEBER; NEW :
YORK CITY ENVIRONMENTAL CONTROL BOARD; :
NEW YORK CITY PARKING VIOLATIONS BUREAU; :
NEW YORK STATE DEPARTMENT OF TAXATION :
AND FINANCE, :
:
“JOHN DOE #1” through “JOHN DOES #12,” the last :
twelve names being fictitious and unknown to plaintiff, the :
persons or parties intended being the tenants, occupants, :
persons or corporations, if any, having or claiming an :
interest in or lien upon the Subject Property, described in :
the Complaint, :
:
Defendants.
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REPLY AFFIRMATION IN FURTHER SUPPORT OF
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Steven Lazar, Esq., an attorney at law duly admitted to practice before the Courts of the
State of New York, hereby affirms pursuant to CPLR 2106 that:
1. I am an attorney at the law firm of Greenberg Traurig, LLP, counsel for plaintiff,
Deutsche Bank National Trust Company, As Trustee For Ameriquest Mortgage Securities Inc.,
Asset-Backed Pass-Through Certificates, Series 2005-R7 (“Plaintiff” or “Deutsche Bank”). I am
fully familiar with the facts and circumstances underlying this application.
2. I submit this affirmation in reply to the opposition by defendant Ken Weber a/k/a
Kenneth J. Weber (“Defendant” or “Weber”) and in further support of Plaintiff’s motion for an
order: (i) granting summary judgment in favor of Plaintiff for the relief demanded in the Complaint
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and striking the affirmative defenses raised in Defendant’s Answer pursuant to CPLR 3212; (ii)
granting default judgment against the defaulting defendants, pursuant to CPLR § 3215; (iii)
amending the caption of this action by substituting “Ana Marie “Doe” (Last Name Refused)” in
place of “John Doe #1” and by striking therefrom the remaining defendants sued herein as “John
Doe # 2” through “John Doe # 12” without prejudice; (iv) directing the appointment of a referee
to compute, pursuant to CPLR 4311 and RPAPL § 1321; and (v) granting such other and further
relief as may be just and proper, (“Plaintiff’s motion”).
ARGUMENT
3. Plaintiff’s motion is opposed by Defendant Weber based on the grounds that this
action is barred by the statute of limitations and that the default date contained in the 90-Day
Notice and Notice of Default are incorrect. 1 Defendant, however, fails to meet his burden of proof
to show that a material issue of fact exists that requires a trial. See, e.g., Zuckerman v. City of New
York, 49 N.Y.2d 557, 562 (1980) (“We have repeatedly held that one opposing a motion for
summary judgment must produce evidentiary proof in admissible form sufficient to require a trial
of material questions of fact on which he rests his claim or must demonstrate acceptable excuse
for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions
of hope or unsubstantiated allegations or assertions are insufficient.”); Shaw v. Time-Life Records,
38 N.Y.2d 201, 207 (1975) (“Motions for summary judgment may not be defeated merely by
surmise, conjecture or suspicion.”); Cohen Fashion Optical, Inc. v. V&M Optical, Inc., 51 A.D.3d
619 (2d Dep’t 2008) (dismissing affirmative defenses that were not supported with any factual
allegations and the defenses were conclusory in nature).
1
Notably, Defendant states that he is only opposing Plaintiff’s motion insofar as it seeks to strike Defendant’s Answer
and for summary judgment against Defendant. (Def’s Opp. ¶ 2). Hence, Defendant is not challenging Plaintiff’s
entitlement to default judgment against the remaining defendants and to amend the caption.
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4. As an initial matter, Defendant abandoned affirmative defenses # 5-14 contained in
his Answer. (Lazar Aff., Ex. 7). See, e.g., Josephson LLC v. Column Fin., Inc., 94 A.D.3d 479,
480 (1st Dep’t 2012) (“Plaintiffs abandoned their remaining claims by failing to oppose the parts
of defendants’ motion that sought summary judgment dismissing those claims”); Deutsche Bank
Natl. Trust Co. v. Logan, 183 A.D.3d 660, 663 (2d Dep’t 2020) (“defendant did not raise the issue
. . . in opposing the plaintiff’s earlier motion . . . [t]hus, the defendant has waived such an
argument”); N.Y. Commercial Bank v. J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 756-57 (2d
Dep’t 2013) (“The Supreme Court should not have, sua sponte, concluded that a triable issue of
fact existed as to whether the plaintiff had complied with RPAPL 1301(3), since the defendants
never raised that affirmative defense in their opposition papers and, thus, by their failure to do so,
waived it.”); Starkman v. City of Long Beach, 106 A.D.3d 1076, 1978 (2d Dep’t 2013) (“Further,
the first, second, and fourth affirmative defenses must be dismissed on the ground that the
defendants did not oppose the dismissal of those affirmative defenses.”); Genovese v. Gambino,
309 A.D.2d 832, 833 (2d Dep’t 2003) (“Dr. Genovese did not oppose that branch of the motion
and, as the Supreme Court itself noted, he has abandoned his claim that he was wrongfully
terminated.”); Nat’l City Bank v. Ramirez, No. 19582/09, 2014 NY Slip Op 32865, at *4 (Sup, Ct,
Suffolk Cnty. Oct. 22, 2014) (“the failure by the defendant mortgagor to raise and/or assert each
of her pleaded defenses in opposition to the plaintiff’s motion warrants the dismissal of the same
as abandoned”).
5. With respect to Defendant’s first argument, Defendant contends that this action is
barred by the six-year statute of limitations to foreclose on a mortgage because Plaintiff
commenced a prior foreclosure action on June 20, 2006 (“2006 Foreclosure Action”). (Def’s Opp.
¶¶ 8-16). Defendant, though, fails to address the fact that the mortgage loan was reinstated after
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Defendant executed a Loan Modification Agreement on February 28, 2018, and this action was
based on Defendant’s April 1, 2018 default. (Vent Aff. ¶¶ 14, 17, Exs. L, P), (Lazar Aff., Ex. 1,
¶¶ 12, 15). See Goshen Mtge. v. Depalma, 186 A.D.3d 1203, 1206 (2d Dep’t 2020) (“The
modification agreement ‘evinced a clear intent by [PCG], with the [defendants’] knowledge and
consent, to revoke [the lender's] prior election and reinstate the [defendants’] right to repay the
underlying debt in monthly installments, subject to the new terms and conditions set forth in the
[modification agreement].’ As such, the modification agreement constituted an affirmative act of
revocation sufficient to cancel the running of the statute of limitations triggered by the
commencement of the 2005 action and to reinstate the note and mortgage.”) (citation omitted).
6. Alternatively, Defendant acknowledged the existence of the unpaid debt when he
executed the Loan Modification Agreement on February 28, 2018, thereby restarting the statute of
limitations. (Vent Aff., Ex. L at 3, ¶¶ 2-3). See, e.g., General Obligations Law § 17-105; Banco
do Brasil S.A. v. State of Antigua & Barbuda, 268 A.D.2d 75, 76 (1st Dep’t 2000); Nat’l Heritage
Life Ins. Co. v. Hill St. Assoc., 262 A.D.2d 378 (2d Dep’t 1999); Zucker v. HSBC Bank, USA, 2018
WL 2048880, *7, 2018 U.S. Dist. LEXIS 74478, *17 (E.D.N.Y. May 2, 2018, No. 17–CV–2192
(DRH) (SIL)). Thus, this action is not time-barred.
7. As to Defendant’s second argument, Defendant contends that Plaintiff did not
comply with RPAPL § 1304 and § 1306 because the 90-Day Notice was sent before the 2006
action was formally discontinued and the notice contained the wrong default date. (Def’s Opp. ¶¶
16-22).
8. Contrary to Defendant’s contention, the motion to discontinue the 2006 action was
filed on April 20, 2018, not May 23, 2018, which is the date of the signing of the Order
discontinuing the 2006 action. (Def’s Opp. ¶ 18). True and correct copies of the motion to
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discontinue and May 23, 2018 Order obtained from the Richmond County Clerk’s Office are
attached hereto as Exhibit 1 and Exhibit 2, respectively. 2 Thus, the motion to discontinue the
2006 was filed before the mailing of the 90-Day Notice on May 8, 2018 and Notice of Default on
May 17, 2018. (Vent Aff. ¶¶ 24-26, Exs. R-T). In any event, the fact that the Order discontinuing
the 2006 action was not signed until May 23, 2018 has no bearing on the fact that Defendant
defaulted under the terms of the Loan Modification Agreement on April 1, 2018. (Vent Aff. ¶ 17,
Ex. P).
9. Similarly unavailing is Defendant’s argument that the April 1, 2018 default date
contained in the 90-Day Notice is incorrect merely because the Loan Modification Agreement was
not signed by Ocwen Loan Servicing, LLC until April 3, 2018. (Def’s Opp. ¶ 19), (Vent Aff, Exs.
L, R). Contrary to Defendant’s contention, the second page of the Loan Modification Agreement
states that the effective date of the modification was January 1, 2018. (Vent Aff, Ex. L). 3 See
Bank of Am., N.A. v. Terry, 177 A.D.3d 669, 670 (2d Dep’t 2019) (“The defendant's contention
that the loan modification agreement is unenforceable because it was not executed by the plaintiff
or recorded is belied by the fact that the defendant executed the agreement and made payments
provided for in the agreement for several years prior to his default thereon, thus demonstrating that
he considered the agreement to be valid and effective.”).
10. Notably, Defendant concedes that he defaulted on the mortgage loan, he just
disputes the exact date of default and amount owed. (Def’s Opp. ¶¶ 19, 21), (Lazar Aff., Ex. 7, ¶
57). However, “[a] dispute as to the total amount of indebtedness does not preclude an award of
2
The litigation back of the Notice Of Motion To Discontinue Action And Cancel Notice Of Pendency is stamped by
the Richmond County Clerk as filed on “04/20/2018”.
3
See paragraph 2 of “Acknowledgments and Preconditions to the Modification” and paragraph 1 of “Modified Loan
Terms”. Although paragraph 3 of the Acknowledgments section states that “The Loan Documents will not be
modified unless and until 1) Lender approves this Agreement and 2) the Modification Effective Date has occurred,”
the top of the first page states that “This document was prepared by Ocwen Loan Servicing, LLC,” which shows that
the Loan Modification Agreement was approved by the Lender. (Vent Aff, Ex. L).
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summary judgment to the plaintiff on the issue of foreclosure, but is properly raised before the
referee in computing the amount due.”). Excel Capital Group Corp. v. 225 Ross St. Realty, Inc.,
165 A.D.3d 1233, 1235 (2d Dep’t. 2018). In any event, pursuant to CPLR 3123(a), Defendant is
deemed to have admitted to defaulting on April 1, 2018 because Defendant failed to respond to
Plaintiff’s Notice to Amit. (Lazar Aff., Ex. 11).
11. Finally, Defendant contends that Plaintiff’s motion should be denied and “a
preliminary conference should be directed in this matter, for the purpose of allowing the parties to
engage in meaningful discovery concerning the subject issue, including the deposition of those
parties with requisite knowledge of the facts and circumstances underlying the subject issue.”
(Def’s Opp. ¶ 25). However, Defendant had more than two years to serve discovery demands but
failed to do so. In addition, Defendant fails to explain how discovery would lead to relevant
evidence or show that it is within Plaintiff’s exclusive knowledge and control. See, e.g.,
Citimortgage, Inc. v. Heyman, 186 A.D.3d 1487, 1488 (2d Dep’t 2020) (“Contrary to their
contention, the plaintiff's motion was not premature on the ground that further discovery was
warranted, as the defendants failed to demonstrate that discovery might lead to relevant evidence
in connection with the plaintiff's evidence of default.”); HSBC Bank USA, N.A. v. Tigani, 185
A.D.3d 796, 798 (2d Dep’t 2020) (“A party who seeks a finding that a summary judgment motion
is premature is required to put forth some evidentiary basis to suggest that discovery might lead to
relevant evidence or that the facts essential to justify opposition to the motion were exclusively
within the knowledge and control of the movant.”) (internal quotation marks and citation omitted).
Wells Fargo Bank, N.A. v. Gonzalez, 174 A.D.3d 555 (2d Dep’t 2019) (“The mere hope or
speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered
during the discovery process is insufficient to deny the motion [for summary judgment].”) (internal
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quotation marks and citation omitted).
12. Based on the foregoing, this Court should grant the relief sought in Plaintiff’s
motion.
Dated: December 7, 2020
New York, New York
GREENBERG TRAURIG, LLP
By: /s/ Steven Lazar
Steven Lazar, Esq.
MetLife Building
200 Park Avenue, 39th Floor
New York, NY 10166
Tel: (212) 801-9200
Email: lazars@gtlaw.com
Attorneys for Deutsche Bank National Trust
Company, As Trustee For Ameriquest
Mortgage Securities Inc., Asset-Backed
Pass-Through Certificates, Series 2005-R7
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Preview
FILED: RICHMOND COUNTY CLERK 12/07/2020 06:44 PM INDEX NO. 135548/2018 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/07/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ------------------------------------------------------------------------X DEUTSCHE BANK NATIONAL TRUST COMPANY, : AS TRUSTEE FOR AMERIQUEST MORTGAGE : Index No. 135548/2018 SECURITIES INC., ASSET-BACKED PASS- : THROUGH CERTIFICATES, SERIES 2005-R7, : : Plaintiff, : -against- : KEN WEBER A/K/A KENNETH J. WEBER; NEW : YORK CITY ENVIRONMENTAL CONTROL BOARD; : NEW YORK CITY PARKING VIOLATIONS BUREAU; : NEW YORK STATE DEPARTMENT OF TAXATION : AND FINANCE, : : “JOHN DOE #1” through “JOHN DOES #12,” the last : twelve names being fictitious and unknown to plaintiff, the : persons or parties intended being the tenants, occupants, : persons or corporations, if any, having or claiming an : interest in or lien upon the Subject Property, described in : the Complaint, : : Defendants. ------------------------------------------------------------------------X REPLY AFFIRMATION IN FURTHER SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Steven Lazar, Esq., an attorney at law duly admitted to practice before the Courts of the State of New York, hereby affirms pursuant to CPLR 2106 that: 1. I am an attorney at the law firm of Greenberg Traurig, LLP, counsel for plaintiff, Deutsche Bank National Trust Company, As Trustee For Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R7 (“Plaintiff” or “Deutsche Bank”). I am fully familiar with the facts and circumstances underlying this application. 2. I submit this affirmation in reply to the opposition by defendant Ken Weber a/k/a Kenneth J. Weber (“Defendant” or “Weber”) and in further support of Plaintiff’s motion for an order: (i) granting summary judgment in favor of Plaintiff for the relief demanded in the Complaint 1 1 of 7 FILED: RICHMOND COUNTY CLERK 12/07/2020 06:44 PM INDEX NO. 135548/2018 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/07/2020 and striking the affirmative defenses raised in Defendant’s Answer pursuant to CPLR 3212; (ii) granting default judgment against the defaulting defendants, pursuant to CPLR § 3215; (iii) amending the caption of this action by substituting “Ana Marie “Doe” (Last Name Refused)” in place of “John Doe #1” and by striking therefrom the remaining defendants sued herein as “John Doe # 2” through “John Doe # 12” without prejudice; (iv) directing the appointment of a referee to compute, pursuant to CPLR 4311 and RPAPL § 1321; and (v) granting such other and further relief as may be just and proper, (“Plaintiff’s motion”). ARGUMENT 3. Plaintiff’s motion is opposed by Defendant Weber based on the grounds that this action is barred by the statute of limitations and that the default date contained in the 90-Day Notice and Notice of Default are incorrect. 1 Defendant, however, fails to meet his burden of proof to show that a material issue of fact exists that requires a trial. See, e.g., Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980) (“We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.”); Shaw v. Time-Life Records, 38 N.Y.2d 201, 207 (1975) (“Motions for summary judgment may not be defeated merely by surmise, conjecture or suspicion.”); Cohen Fashion Optical, Inc. v. V&M Optical, Inc., 51 A.D.3d 619 (2d Dep’t 2008) (dismissing affirmative defenses that were not supported with any factual allegations and the defenses were conclusory in nature). 1 Notably, Defendant states that he is only opposing Plaintiff’s motion insofar as it seeks to strike Defendant’s Answer and for summary judgment against Defendant. (Def’s Opp. ¶ 2). Hence, Defendant is not challenging Plaintiff’s entitlement to default judgment against the remaining defendants and to amend the caption. 2 2 of 7 FILED: RICHMOND COUNTY CLERK 12/07/2020 06:44 PM INDEX NO. 135548/2018 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/07/2020 4. As an initial matter, Defendant abandoned affirmative defenses # 5-14 contained in his Answer. (Lazar Aff., Ex. 7). See, e.g., Josephson LLC v. Column Fin., Inc., 94 A.D.3d 479, 480 (1st Dep’t 2012) (“Plaintiffs abandoned their remaining claims by failing to oppose the parts of defendants’ motion that sought summary judgment dismissing those claims”); Deutsche Bank Natl. Trust Co. v. Logan, 183 A.D.3d 660, 663 (2d Dep’t 2020) (“defendant did not raise the issue . . . in opposing the plaintiff’s earlier motion . . . [t]hus, the defendant has waived such an argument”); N.Y. Commercial Bank v. J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 756-57 (2d Dep’t 2013) (“The Supreme Court should not have, sua sponte, concluded that a triable issue of fact existed as to whether the plaintiff had complied with RPAPL 1301(3), since the defendants never raised that affirmative defense in their opposition papers and, thus, by their failure to do so, waived it.”); Starkman v. City of Long Beach, 106 A.D.3d 1076, 1978 (2d Dep’t 2013) (“Further, the first, second, and fourth affirmative defenses must be dismissed on the ground that the defendants did not oppose the dismissal of those affirmative defenses.”); Genovese v. Gambino, 309 A.D.2d 832, 833 (2d Dep’t 2003) (“Dr. Genovese did not oppose that branch of the motion and, as the Supreme Court itself noted, he has abandoned his claim that he was wrongfully terminated.”); Nat’l City Bank v. Ramirez, No. 19582/09, 2014 NY Slip Op 32865, at *4 (Sup, Ct, Suffolk Cnty. Oct. 22, 2014) (“the failure by the defendant mortgagor to raise and/or assert each of her pleaded defenses in opposition to the plaintiff’s motion warrants the dismissal of the same as abandoned”). 5. With respect to Defendant’s first argument, Defendant contends that this action is barred by the six-year statute of limitations to foreclose on a mortgage because Plaintiff commenced a prior foreclosure action on June 20, 2006 (“2006 Foreclosure Action”). (Def’s Opp. ¶¶ 8-16). Defendant, though, fails to address the fact that the mortgage loan was reinstated after 3 3 of 7 FILED: RICHMOND COUNTY CLERK 12/07/2020 06:44 PM INDEX NO. 135548/2018 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/07/2020 Defendant executed a Loan Modification Agreement on February 28, 2018, and this action was based on Defendant’s April 1, 2018 default. (Vent Aff. ¶¶ 14, 17, Exs. L, P), (Lazar Aff., Ex. 1, ¶¶ 12, 15). See Goshen Mtge. v. Depalma, 186 A.D.3d 1203, 1206 (2d Dep’t 2020) (“The modification agreement ‘evinced a clear intent by [PCG], with the [defendants’] knowledge and consent, to revoke [the lender's] prior election and reinstate the [defendants’] right to repay the underlying debt in monthly installments, subject to the new terms and conditions set forth in the [modification agreement].’ As such, the modification agreement constituted an affirmative act of revocation sufficient to cancel the running of the statute of limitations triggered by the commencement of the 2005 action and to reinstate the note and mortgage.”) (citation omitted). 6. Alternatively, Defendant acknowledged the existence of the unpaid debt when he executed the Loan Modification Agreement on February 28, 2018, thereby restarting the statute of limitations. (Vent Aff., Ex. L at 3, ¶¶ 2-3). See, e.g., General Obligations Law § 17-105; Banco do Brasil S.A. v. State of Antigua & Barbuda, 268 A.D.2d 75, 76 (1st Dep’t 2000); Nat’l Heritage Life Ins. Co. v. Hill St. Assoc., 262 A.D.2d 378 (2d Dep’t 1999); Zucker v. HSBC Bank, USA, 2018 WL 2048880, *7, 2018 U.S. Dist. LEXIS 74478, *17 (E.D.N.Y. May 2, 2018, No. 17–CV–2192 (DRH) (SIL)). Thus, this action is not time-barred. 7. As to Defendant’s second argument, Defendant contends that Plaintiff did not comply with RPAPL § 1304 and § 1306 because the 90-Day Notice was sent before the 2006 action was formally discontinued and the notice contained the wrong default date. (Def’s Opp. ¶¶ 16-22). 8. Contrary to Defendant’s contention, the motion to discontinue the 2006 action was filed on April 20, 2018, not May 23, 2018, which is the date of the signing of the Order discontinuing the 2006 action. (Def’s Opp. ¶ 18). True and correct copies of the motion to 4 4 of 7 FILED: RICHMOND COUNTY CLERK 12/07/2020 06:44 PM INDEX NO. 135548/2018 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/07/2020 discontinue and May 23, 2018 Order obtained from the Richmond County Clerk’s Office are attached hereto as Exhibit 1 and Exhibit 2, respectively. 2 Thus, the motion to discontinue the 2006 was filed before the mailing of the 90-Day Notice on May 8, 2018 and Notice of Default on May 17, 2018. (Vent Aff. ¶¶ 24-26, Exs. R-T). In any event, the fact that the Order discontinuing the 2006 action was not signed until May 23, 2018 has no bearing on the fact that Defendant defaulted under the terms of the Loan Modification Agreement on April 1, 2018. (Vent Aff. ¶ 17, Ex. P). 9. Similarly unavailing is Defendant’s argument that the April 1, 2018 default date contained in the 90-Day Notice is incorrect merely because the Loan Modification Agreement was not signed by Ocwen Loan Servicing, LLC until April 3, 2018. (Def’s Opp. ¶ 19), (Vent Aff, Exs. L, R). Contrary to Defendant’s contention, the second page of the Loan Modification Agreement states that the effective date of the modification was January 1, 2018. (Vent Aff, Ex. L). 3 See Bank of Am., N.A. v. Terry, 177 A.D.3d 669, 670 (2d Dep’t 2019) (“The defendant's contention that the loan modification agreement is unenforceable because it was not executed by the plaintiff or recorded is belied by the fact that the defendant executed the agreement and made payments provided for in the agreement for several years prior to his default thereon, thus demonstrating that he considered the agreement to be valid and effective.”). 10. Notably, Defendant concedes that he defaulted on the mortgage loan, he just disputes the exact date of default and amount owed. (Def’s Opp. ¶¶ 19, 21), (Lazar Aff., Ex. 7, ¶ 57). However, “[a] dispute as to the total amount of indebtedness does not preclude an award of 2 The litigation back of the Notice Of Motion To Discontinue Action And Cancel Notice Of Pendency is stamped by the Richmond County Clerk as filed on “04/20/2018”. 3 See paragraph 2 of “Acknowledgments and Preconditions to the Modification” and paragraph 1 of “Modified Loan Terms”. Although paragraph 3 of the Acknowledgments section states that “The Loan Documents will not be modified unless and until 1) Lender approves this Agreement and 2) the Modification Effective Date has occurred,” the top of the first page states that “This document was prepared by Ocwen Loan Servicing, LLC,” which shows that the Loan Modification Agreement was approved by the Lender. (Vent Aff, Ex. L). 5 5 of 7 FILED: RICHMOND COUNTY CLERK 12/07/2020 06:44 PM INDEX NO. 135548/2018 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/07/2020 summary judgment to the plaintiff on the issue of foreclosure, but is properly raised before the referee in computing the amount due.”). Excel Capital Group Corp. v. 225 Ross St. Realty, Inc., 165 A.D.3d 1233, 1235 (2d Dep’t. 2018). In any event, pursuant to CPLR 3123(a), Defendant is deemed to have admitted to defaulting on April 1, 2018 because Defendant failed to respond to Plaintiff’s Notice to Amit. (Lazar Aff., Ex. 11). 11. Finally, Defendant contends that Plaintiff’s motion should be denied and “a preliminary conference should be directed in this matter, for the purpose of allowing the parties to engage in meaningful discovery concerning the subject issue, including the deposition of those parties with requisite knowledge of the facts and circumstances underlying the subject issue.” (Def’s Opp. ¶ 25). However, Defendant had more than two years to serve discovery demands but failed to do so. In addition, Defendant fails to explain how discovery would lead to relevant evidence or show that it is within Plaintiff’s exclusive knowledge and control. See, e.g., Citimortgage, Inc. v. Heyman, 186 A.D.3d 1487, 1488 (2d Dep’t 2020) (“Contrary to their contention, the plaintiff's motion was not premature on the ground that further discovery was warranted, as the defendants failed to demonstrate that discovery might lead to relevant evidence in connection with the plaintiff's evidence of default.”); HSBC Bank USA, N.A. v. Tigani, 185 A.D.3d 796, 798 (2d Dep’t 2020) (“A party who seeks a finding that a summary judgment motion is premature is required to put forth some evidentiary basis to suggest that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.”) (internal quotation marks and citation omitted). Wells Fargo Bank, N.A. v. Gonzalez, 174 A.D.3d 555 (2d Dep’t 2019) (“The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion [for summary judgment].”) (internal 6 6 of 7 FILED: RICHMOND COUNTY CLERK 12/07/2020 06:44 PM INDEX NO. 135548/2018 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/07/2020 quotation marks and citation omitted). 12. Based on the foregoing, this Court should grant the relief sought in Plaintiff’s motion. Dated: December 7, 2020 New York, New York GREENBERG TRAURIG, LLP By: /s/ Steven Lazar Steven Lazar, Esq. MetLife Building 200 Park Avenue, 39th Floor New York, NY 10166 Tel: (212) 801-9200 Email: lazars@gtlaw.com Attorneys for Deutsche Bank National Trust Company, As Trustee For Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R7 7 7 of 7