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FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
JPMorgan Chase Bank, National Association,
REPLY AFFIRMATION
Plaintiff,
Index No. 701321/2020
- against -
Celia A. Walker a/k/a Celia Walker; City of New York
Environmental Control Board; City of New York Parking
Violations Bureau; City of New York Transit Adjudication
Bureau; "John Doe"; "John Doe"; "John Doe"; "John Doe";
"John Doe",
Defendants.
Ellis M. Oster, 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 a senior associate of LOGS Legal Group LLP f/k/aShapiro, DiCaro & Barak,
LLC, the attorneys of record for Plaintiff in thisaction, and as such, I am fully familiar with the
facts and circumstances underlying this action.
2. A detailed recitation of the procedural posture and factual background of this matter
isset forth in the affirmation of Barbara Dunleavy, Esq. dated September 20, 2022 (NYSCEF Doc.
No. 67), which was submitted in support of Plaintiff's underlying motion for a final judgment of
foreclosure and sale (NYSCEF Doc. Nos. 63-69). In the interests of brevity, Plaintiff respectfully
incorporates that discussion by reference.
3. I offer this affirmation in further support of Plaintiff's motion forjudgment and
related relief, in order to reply to the affidavit in opposition dated October 18, 2022 (NYSCEF
Doc. No. 71) filed herein by Defendant, Celia A. Walker a/k/a Celia Walker, pro se ("Defendant").
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4. For the reasons set forth below, final judgment should be entered in favor of
Plaintiff.
5. The Court will find that in itsprior motion for a default Order of Reference (Motion
Seq. No. 001, NYSCEF Doc. Nos. 24-42), Plaintiff demonstrated itsprima facie entitlement to
judgment on itsmortgage foreclosure claim, as a matter of law, "by producing the mortgage, the
unpaid note, and evidence of default". U.S. Bank Natl. Assn. v. Denaro, 98 A.D.3d 964, 950
N.Y.S.2d 581 (2d Dept. 2012).
6. Plaintiff further demonstrated that all defendants (including Defendant) are in
default in pleading in this case, thus entitling Plaintiff to the entry of an Order of Reference on
default in Plaintiff's favor. HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815 (2d Dept. 2013).
7. Thus, by failing to timely appear and plead in this case within her time to do so
pursuant to CPLR § 320, Defendant waived her right to any Referee's computation hearing as well
as to be heard in opposition to Plaintiff's pending motion. See Deutsche Bank Natl. Trust Co. v.
Ziotoff, 77 A.D.3d 702 (2d Dept. 2010); Deutsche Bank Natl. Trust Co. v. Jackson, 68 A.D.3d 805
(2d Dept. 2009); Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, Ch. 20, §§
20.05; 20.06 (2013).
8. With respect to Plaintiff's instant motion, which seeks a final Judgment of
Foreclosure and Sale and confirmation of the Referee's Report of Amount Due, the Court is
record."
entitled to credit a Referee's determinations where "substantially supported by the See
Poster v. Poster, 4 A.D.3d 145, 145, 771 N.Y.S.2d 635. 635 (1st Dept. 2004). Hearsay evidence
isadmissible and may be relied upon by a Referee where itclearly bears indicia of reliability (see
Russell v. Del Castilla, 181 A.D.2d 680, 580 N.Y.S.2d 788 (2d Dept. 1992)), or is "relevant and
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probative"
highly (Gellman v. Gunn, 143 A.D.2d 628, 628, 533 N.Y.S.2d 113, 114 (2d Dept.
1988)).
9. "The referee isconsidered to be in the best position to report on the issues presented
and to determine issues of credibility. The report and recommendation of a referee or judicial
hearing officer should be confirmed if the findings therein are supported by the record. Stated
another way, it iswell established that the report of a referee must be confirmed whenever the
findings contained therein are substantially supported by the record, and referee has clearly defined
credibility."
the issues and resolved matters of 61 Carmody-Wait 2d § 61:83 (1999) (citations
omitted).
10. "The rule is well settled that where questions of fact are submitted to a referee, it
is the function of the referee to determine the issues presented, as well as to resolve conflicting
testimony and matters of credibility, and generally, courts will not disturb the findings of a referee
to the extent that the record substantiates his findings and they may reject findings not supported
record."
by the Mondelo v. Mondelo, 253 A.D.2d 861, 678 N.Y.S.2d 506 (2d Dept 1998) (internal
quotations omitted) (citations omitted); Freedman v. Freedman, 211 A.D.2d 580,
621 N.Y.S.2d 610 (Ist Dept 1995); see also 61 Carmody-Wait 2d § 61:83 (1999) (establishing that
a report of a referee must be confirmed when the findings are substantially supported by the
record).
11. Defendant, who again waived her right to be heard in opposition to Plaintiff's
pending motion due to her default in timely appearing and pleading herein, does not actually
dispute the amount owed to Plaintiff and she does not present any evidence to suggest that the
Referee's computations in the Report of Amount Due issued in thiscase are in any way incorrect,
and she likewise does not dispute that the mortgaged premises involved in thiscase should be sold
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in one parcel, which are the sole issues before the Court at the present time. See, e.g., Woodridge
Hotel LLC v. Hotel Lake House Inc., 281 A.D.2d 778, 722 N.Y.S.2d 275 (3d Dept. 2001); Shultis
v. Woodstock Land Dev. Assocs., 195 A.D.2d 677, 599 N.Y.S.2d 340 (3d Dept. 1993); L_B_y
Properties v. Greenport Dev. Co., 188 A.D.2d 588, 591 N.Y.S.2d 70 (2d Dept. 1992); Blueberry
Investors Co. v. Ilana Realty, Inc., 184 A.D.2d 906, 585 N.Y.S.2d 564 (3d Dept. 1992); Citibank,
N.A. v. Grunfeld, 188 Misc. 2d 327, 728 N.Y.S.2d 632 (Sup. Ct., Kings Cty. 2001).
12. Defendant has now elected to be heard as to the proposed computations submitted
by Plaintiff's counsel to the Referee by interposing her instant opposition, and yet she fails to
present any arguments or evidence to rebut the Referee's computations and findings in this case to
warrant the denial of Plaintiff's instant motion. See, e.g., Deutsche Bank National Trust Company
v. Ouinn, 120 A.D.3d 609 (2d Dept. 2014); Deutsche Bank Natl. Trust Co. v Zlotoff, 77 A.D.3d
702 (2d Dept. 2010); Deutsche Bank Natl. Trust Co. v Jackson, 68 A.D.3d 805 (2d Dept. 2009).
13. Instead, Defendant's affidavit in opposition sets for a litany of purported defenses,
presented in entirely bare and conclusory fashion, without firstbringing a motion seeking to vacate
her default in pleading or the previously entered Order of Reference (NYSCEF Doc. Nos. 49-51),
and thus the Court should disregard Defendant's instant opposition in itsentirety.
14. Be that as it may, to the extent the Court stillelects to consider Defendant's
opposition, such is entirely insufficient to warrant denial of Plaintiff's motion in any event.
15. First,by defaulting in pleading here, such constituted a waiver of the overwhelming
majority of her purported defenses, including statute of limitations, laches, and standing, pursuant
to CPLR 321 l(e)and/or 3018(b). Indeed, by defaulting in pleading, such constituted an admission
as to allfactual allegations contained in Plaintiff's Complaint, pursuant to CPLR 3018(a).
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16. Indeed, with respect to Plaintiff's standing to commence this action, Defendant
waived said defense pursuant to CPLR § 321 l(e) by defaulting in pleading herein, as "RPAPL
1302-a, which allows a defendant in a foreclosure action to raise the issue of standing at any time,
does not apply to a defaulting defendant". Ditech Fin., LLC v. Howell, 201 A.D.3d 786, 788 (2d
Dept. 2022), citing GMAC Mtge., LLC v. Coombs, 191 A.D.3d 37 (2d Dept. 2020); Aurora Loan
Servs., LLC v. Movtady, 165 A.D.3d 1025, 1026 (2d Dept. 2018).
17. Nevertheless, Plaintiff definitively proved itsstanding as (1) Plaintiff isthe original
themselves"
lender and thus itsstanding is"established by the lending documents (LaSalle Bank
Natl. Assn. v. Lamy, 12 Misc. 3d 1191A, 824 N.Y.S.2d 769 (Sup. Ct., Suffolk Cty. 2006)); (2)
while Plaintiff did assign the note and mortgage to Chase Home Finance LLC via an assignment
of mortgage dated January 29, 2010 (NYSCEF Doc. No. 32), Chase Home Finance LLC
subsequently merged with and into Plaintiff, JPMorgan Chase Bank, National Association,
effective May 1, 2011 (said Certificate of Merger is annexed hereto as Exhibit "A"), and thus
Plaintiff, which again is the original lender, once again automatically became the note and
mortgage holder upon said merger with the assignee pursuant to Banking Law § 602 (MTGLO
Invs., L.P. v. Miciotta, 204 A.D.3d 1119 (3d Dept. 2022), specifically finding that JPMorgan
Chase Bank, N.A. had the requisite standing to commence a foreclosure action for a note and
mortgage previously held by Chase Home Finance, LLC post-merger without the need for an
assignment of mortgage); and (3) Defendant entered into two loan modification agreements with
Plaintiff effective January 1, 2012 and December 1, 2018 (NYSCEF Doc. No. 41), both of which
likewise prove Plaintiff's standing to bring this action (see Wells Fargo Bank, N.A. v. Graffioli,
167 A.D.3d 969, 971 (2d Dept. 2018), holding that a borrower entering into a loan modification
agreement with the foreclosing plaintiff itselfproves the foreclosing plaintiff's standing to bring a
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subsequent foreclosure action following a default in payment under the terms of the loan
modification agreement).
18. Thus, and in addition to Defendant's waiver of such a defense, Plaintiff has
definitively and unequivocally proven itsstanding to commence this action.
19. As for the statute of limitations, whereby a mortgage foreclosure action such as this
has a six-year statute of limitations (see CPLR § 213(4)), not only did Defendant waive such a
defense as a matter of law pursuant to CPLR 321I(e) by defaulting in pleading, but there is
absolutely no question that the case at bar was timely commenced on January 24, 2020 (NYSCEF
Doc. Nos. 1-4), as Defendant's default in payment occurred with the monthly installment due on
August 1, 2019, after the mortgage loan was modified by the loan modification agreement effective
December 1, 2018.
20. As for Defendant also claiming "laches", it is well-founded law that laches is
unavailable when a statute of limitations applies, as itdoes in a mortgage foreclosure action. See
New York State Mortgage Loan Enforcement & Admin. Corp. v. North Town Phase II Houses,
Is 191 A.D.2d 151, 594 N.Y.S.2d 183 (lst Dept. 1993); First Fed. Sav. & Loan AssI of
Rochester v. Capalongo, 152 A.D.2d 833, 544 N.Y.S.2d 44 (3d Dept. 1989). In thatregard, where
a Plaintiff waited seventeen (17) years before commencing a foreclosure action, when the statute
of limitations at the time was twenty (20) years, the Court still held that the action was timely
commenced, and not subject to a laches defense. Wesselman v. Engel Co., 309 N.Y. 27, 309 N.Y.
(N.Y.S.) 27, 127 N.E.2d 736 (1955).
21. Here, Defendant defaulted in making her mortgage payment due on August 1, 2019,
and after the 90-day notice sent by Plaintiff expired, Plaintiff commenced the case at bar on
January 24, 2020. Thus, there is absolutely no question that not only was this action timely
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commenced well within the six-year statute of limitations for same, but Plaintiff clearly did not
"laches"
delay whatsoever in commencing this action to warrant any meritiess defense on the part
of Defendant.
22. With respect to service of process and personal jurisdiction over Defendant, "[a]
process server's affidavit of service constitutes prima facie evidence of proper service (see
Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897, 964 N.Y.S.2d 543; Wells Fargo Bank;
NA v Chaplin, 65 AD3d 588, 589, 884 N.Y.S.2d 254; Countrywide Home Loans Servicing, LP v
Albert, 78 AD3d 983, 984, 912 N.Y.S.2d 96). 'Although a defendant's sworn denial of receipt of
service generally rebuts the presumption of proper service established by a process server's
affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails
affidavits'
to swear to specific facts to rebut the statements in the process server's (City of New
York v Miller, 72 AD3d 726, 727, 898 N.Y.S.2d 643 ; see Emigrant Mtge. Co., Inc. v Westervelt,
352)."
105 AD3d at 897 ; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743, 934 N.Y.S.2d
Deutsche Bank Natl. Trust Co. v. Quinones, 114 A.D.3d 719 (2d Dept. 2014).
23. The Affidavit of Service with respect to Defendant was electronically filed herein
on February 27, 2020 (NYSCEF Doc. No. 10), which shows that she was properly served on
February 8, 2020 in accordance with the personal delivery method permitted by CPLR 308(1)
24. Said Affidavit of Service appears valid on its face, as itis signed by the affiant(i.e.,
the licensed process server) and accompanied by a certificate thereon to show that same was sworn
as true by the affiant in front of a notary public (CPLR §2309[a]).
25. It issettled law in New York that an "affidavit of the process server constitute[s]
service"
prima facie evidence of proper (Melton, supra) "sufficient to withstand a naked denial of
service."
receipt of Nazarian v. Monaco Imports, Ltd., 255 A.D.2d 265, 266 (1st Dept. 1998); see
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Bank of N.Y. v Espejo, 92 A.D.3d 707, 708 (2d Dept. 2012); Deutsche Bank Natl. Trust Co. v
Hussain, 78 A.D.3d 989, 989-990 (2d Dept. 2010); Zara Realty Holding Corp. v E & J Deli &
Grocery, Inc., 34 Misc. 3d 1234A (N.Y. Sup. Ct., Queens Cty. 2012).
26. In this case, Defendant's affidavit in opposition clearly does not allege any facts
whatsoever to rebut the prima facie evidence of proper personal delivery service of process created
by the licensed process servicer's affidavit to even warrant a traverse hearing herein (see Bank of
N.Y. v Samuels, 107 A.D.3d 653, 654 (2d Dept. 2013)), let alone the denial of Plaintiffs instant
motion.
27. While Defendant cites CPLR 5015, and even quotes most of that statute, the Court
will find that she has failed to bring a proper motion under that statute to vacate her default in
pleading or the previously entered Order of Reference, and regardless, she has failed to allege any
valid justifiable excuse for her default in pleading or potential meritorious defense to this action,
and thus, even ifshe had brought a proper motion for such relief,she would not be entitled to same
in any event. See HSBC Bank USA, NA v. Lafazan, 115 A.D.3d 647 (2d Dept. 2014); see also
Deutsche Bank Natl. Trust Co. v Gutierrez, 102 A.D.3d 825 (2d Dept. 2013); Citimortgage, Inc.
v. Pembelton, 39 Misc. 3d 454, 460 (Sup. Ct., Suffolk Cty. 2013),
28. Finally, while Defendant mentions the "American rule is that each side pays their
own respective attorneys fees and court costs", in this case, section 22 ofthe consolidated mortgage
(NYSCEF Doc. No. 31, pp. 78-79), clearly and unequivocally permits Plaintiff to seek recovery
from Defendant "all costs and disbursements and additional allowances allowed by Applicable
Law" attorneys' fees"
as well as "all reasonable for "any lawsuit for Foreclosure and Sale", and
thus rule"
Defendant's contentions on this issue are entirely without merit as the "American "can
be altered, however, either by statute or contractual agreement between the parties", in
including
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mortgage foreclosure actions where the mortgage contract signed by the borrower fully permits
the lender to recover same. 3 Bergman on New York Mortgage Foreclosures § 26.01 (2022)
(citations omitted).
29. Based upon the foregoing, Plaintiff's instant motion for a fmal Judgment of
Foreclosure and Sale should be granted in allrespects. See Bank of Am., N.A. v. Lino, 203 A.D.3d
1004, 1005 (2d Dept. 2022) (citations omitted).
WHEREFORE, itis respectfully requested that Plaintiff's pending motion be granted in all
respects; and such other and further relief as to the Court may seem just and proper.
Dated: December 19, 2022
EllisM. Oster, Esq.
Senior Associate, Director of Litigation
LOGS LEGAL GROUP LLP f/k/a
SHAPIRO, DICARO & BARAK, LLC
Attorneys for Plaintlyf
175 Mile Crossing Boulevard
Rochester, New York 14624
(585) 247-9000
(585) 247-7380 Fax
Our File No. 10-000357
To: Celia Walker
Defendant, pro se
78 South 1st Street, Apt. 11
Brooklyn, New York 11249
Served via overnight mail
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ATTORNEY'S CERTIFICATION
I,Ellis M. Oster, am an attorney duly admitted to the practice of law in the State of New
York. I am a senior associate of LOGS Legal Group LLP f/k/a Shapiro, DiCaro & Barak, LLC,
the attorneys for the Plaintiff, JPMorgan Chase Bank, National Association, in the above captioned
civil action.
I HEREBY CERTIFY, pursuant to § 130-1.1-a of the Rules of the Chief Administrator (22
NYCRR), to the best of my knowledge, information and belief, formed afteran inquiry reasonable
under the circumstances, that the presentation of the papers in this action checked below, or the
contentions therein, are not frivolous as defined in subsection (c) of § 130-1.1 of the Rules of the
Chief Administrator (22 NYCRR):
{ } Summons & Complaint
{ } Answer or Reply
{ } Attorney Affirmation
{X} Other: Reply Affirmation
Word Count: The total number of words in this affirmation, exclusive of the caption,
signature block, and this Certification Statement is 2,558.
DATED: December 19, 2022
EllisM. Oster, Esq.
Senior Associate, Director of Litigation
LOGS LEGAL GROUP LLP f/k/a
SHAPIRO, DICARO & BARAK, LLC
Attorneys for Plaintiff
175 Mile Crossing Boulevard
Rochester, New York 14624
(585) 247-9000
(585) 247-7380 Fax
Our File No. 10-000357
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Preview
FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS JPMorgan Chase Bank, National Association, REPLY AFFIRMATION Plaintiff, Index No. 701321/2020 - against - Celia A. Walker a/k/a Celia Walker; City of New York Environmental Control Board; City of New York Parking Violations Bureau; City of New York Transit Adjudication Bureau; "John Doe"; "John Doe"; "John Doe"; "John Doe"; "John Doe", Defendants. Ellis M. Oster, 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 a senior associate of LOGS Legal Group LLP f/k/aShapiro, DiCaro & Barak, LLC, the attorneys of record for Plaintiff in thisaction, and as such, I am fully familiar with the facts and circumstances underlying this action. 2. A detailed recitation of the procedural posture and factual background of this matter isset forth in the affirmation of Barbara Dunleavy, Esq. dated September 20, 2022 (NYSCEF Doc. No. 67), which was submitted in support of Plaintiff's underlying motion for a final judgment of foreclosure and sale (NYSCEF Doc. Nos. 63-69). In the interests of brevity, Plaintiff respectfully incorporates that discussion by reference. 3. I offer this affirmation in further support of Plaintiff's motion forjudgment and related relief, in order to reply to the affidavit in opposition dated October 18, 2022 (NYSCEF Doc. No. 71) filed herein by Defendant, Celia A. Walker a/k/a Celia Walker, pro se ("Defendant"). 10-000357 1 of 10 FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022 4. For the reasons set forth below, final judgment should be entered in favor of Plaintiff. 5. The Court will find that in itsprior motion for a default Order of Reference (Motion Seq. No. 001, NYSCEF Doc. Nos. 24-42), Plaintiff demonstrated itsprima facie entitlement to judgment on itsmortgage foreclosure claim, as a matter of law, "by producing the mortgage, the unpaid note, and evidence of default". U.S. Bank Natl. Assn. v. Denaro, 98 A.D.3d 964, 950 N.Y.S.2d 581 (2d Dept. 2012). 6. Plaintiff further demonstrated that all defendants (including Defendant) are in default in pleading in this case, thus entitling Plaintiff to the entry of an Order of Reference on default in Plaintiff's favor. HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815 (2d Dept. 2013). 7. Thus, by failing to timely appear and plead in this case within her time to do so pursuant to CPLR § 320, Defendant waived her right to any Referee's computation hearing as well as to be heard in opposition to Plaintiff's pending motion. See Deutsche Bank Natl. Trust Co. v. Ziotoff, 77 A.D.3d 702 (2d Dept. 2010); Deutsche Bank Natl. Trust Co. v. Jackson, 68 A.D.3d 805 (2d Dept. 2009); Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, Ch. 20, §§ 20.05; 20.06 (2013). 8. With respect to Plaintiff's instant motion, which seeks a final Judgment of Foreclosure and Sale and confirmation of the Referee's Report of Amount Due, the Court is record." entitled to credit a Referee's determinations where "substantially supported by the See Poster v. Poster, 4 A.D.3d 145, 145, 771 N.Y.S.2d 635. 635 (1st Dept. 2004). Hearsay evidence isadmissible and may be relied upon by a Referee where itclearly bears indicia of reliability (see Russell v. Del Castilla, 181 A.D.2d 680, 580 N.Y.S.2d 788 (2d Dept. 1992)), or is "relevant and 10-000357 2 of 10 FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022 probative" highly (Gellman v. Gunn, 143 A.D.2d 628, 628, 533 N.Y.S.2d 113, 114 (2d Dept. 1988)). 9. "The referee isconsidered to be in the best position to report on the issues presented and to determine issues of credibility. The report and recommendation of a referee or judicial hearing officer should be confirmed if the findings therein are supported by the record. Stated another way, it iswell established that the report of a referee must be confirmed whenever the findings contained therein are substantially supported by the record, and referee has clearly defined credibility." the issues and resolved matters of 61 Carmody-Wait 2d § 61:83 (1999) (citations omitted). 10. "The rule is well settled that where questions of fact are submitted to a referee, it is the function of the referee to determine the issues presented, as well as to resolve conflicting testimony and matters of credibility, and generally, courts will not disturb the findings of a referee to the extent that the record substantiates his findings and they may reject findings not supported record." by the Mondelo v. Mondelo, 253 A.D.2d 861, 678 N.Y.S.2d 506 (2d Dept 1998) (internal quotations omitted) (citations omitted); Freedman v. Freedman, 211 A.D.2d 580, 621 N.Y.S.2d 610 (Ist Dept 1995); see also 61 Carmody-Wait 2d § 61:83 (1999) (establishing that a report of a referee must be confirmed when the findings are substantially supported by the record). 11. Defendant, who again waived her right to be heard in opposition to Plaintiff's pending motion due to her default in timely appearing and pleading herein, does not actually dispute the amount owed to Plaintiff and she does not present any evidence to suggest that the Referee's computations in the Report of Amount Due issued in thiscase are in any way incorrect, and she likewise does not dispute that the mortgaged premises involved in thiscase should be sold 10-000357 3 of 10 FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022 in one parcel, which are the sole issues before the Court at the present time. See, e.g., Woodridge Hotel LLC v. Hotel Lake House Inc., 281 A.D.2d 778, 722 N.Y.S.2d 275 (3d Dept. 2001); Shultis v. Woodstock Land Dev. Assocs., 195 A.D.2d 677, 599 N.Y.S.2d 340 (3d Dept. 1993); L_B_y Properties v. Greenport Dev. Co., 188 A.D.2d 588, 591 N.Y.S.2d 70 (2d Dept. 1992); Blueberry Investors Co. v. Ilana Realty, Inc., 184 A.D.2d 906, 585 N.Y.S.2d 564 (3d Dept. 1992); Citibank, N.A. v. Grunfeld, 188 Misc. 2d 327, 728 N.Y.S.2d 632 (Sup. Ct., Kings Cty. 2001). 12. Defendant has now elected to be heard as to the proposed computations submitted by Plaintiff's counsel to the Referee by interposing her instant opposition, and yet she fails to present any arguments or evidence to rebut the Referee's computations and findings in this case to warrant the denial of Plaintiff's instant motion. See, e.g., Deutsche Bank National Trust Company v. Ouinn, 120 A.D.3d 609 (2d Dept. 2014); Deutsche Bank Natl. Trust Co. v Zlotoff, 77 A.D.3d 702 (2d Dept. 2010); Deutsche Bank Natl. Trust Co. v Jackson, 68 A.D.3d 805 (2d Dept. 2009). 13. Instead, Defendant's affidavit in opposition sets for a litany of purported defenses, presented in entirely bare and conclusory fashion, without firstbringing a motion seeking to vacate her default in pleading or the previously entered Order of Reference (NYSCEF Doc. Nos. 49-51), and thus the Court should disregard Defendant's instant opposition in itsentirety. 14. Be that as it may, to the extent the Court stillelects to consider Defendant's opposition, such is entirely insufficient to warrant denial of Plaintiff's motion in any event. 15. First,by defaulting in pleading here, such constituted a waiver of the overwhelming majority of her purported defenses, including statute of limitations, laches, and standing, pursuant to CPLR 321 l(e)and/or 3018(b). Indeed, by defaulting in pleading, such constituted an admission as to allfactual allegations contained in Plaintiff's Complaint, pursuant to CPLR 3018(a). 10-000357 4 of 10 FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022 16. Indeed, with respect to Plaintiff's standing to commence this action, Defendant waived said defense pursuant to CPLR § 321 l(e) by defaulting in pleading herein, as "RPAPL 1302-a, which allows a defendant in a foreclosure action to raise the issue of standing at any time, does not apply to a defaulting defendant". Ditech Fin., LLC v. Howell, 201 A.D.3d 786, 788 (2d Dept. 2022), citing GMAC Mtge., LLC v. Coombs, 191 A.D.3d 37 (2d Dept. 2020); Aurora Loan Servs., LLC v. Movtady, 165 A.D.3d 1025, 1026 (2d Dept. 2018). 17. Nevertheless, Plaintiff definitively proved itsstanding as (1) Plaintiff isthe original themselves" lender and thus itsstanding is"established by the lending documents (LaSalle Bank Natl. Assn. v. Lamy, 12 Misc. 3d 1191A, 824 N.Y.S.2d 769 (Sup. Ct., Suffolk Cty. 2006)); (2) while Plaintiff did assign the note and mortgage to Chase Home Finance LLC via an assignment of mortgage dated January 29, 2010 (NYSCEF Doc. No. 32), Chase Home Finance LLC subsequently merged with and into Plaintiff, JPMorgan Chase Bank, National Association, effective May 1, 2011 (said Certificate of Merger is annexed hereto as Exhibit "A"), and thus Plaintiff, which again is the original lender, once again automatically became the note and mortgage holder upon said merger with the assignee pursuant to Banking Law § 602 (MTGLO Invs., L.P. v. Miciotta, 204 A.D.3d 1119 (3d Dept. 2022), specifically finding that JPMorgan Chase Bank, N.A. had the requisite standing to commence a foreclosure action for a note and mortgage previously held by Chase Home Finance, LLC post-merger without the need for an assignment of mortgage); and (3) Defendant entered into two loan modification agreements with Plaintiff effective January 1, 2012 and December 1, 2018 (NYSCEF Doc. No. 41), both of which likewise prove Plaintiff's standing to bring this action (see Wells Fargo Bank, N.A. v. Graffioli, 167 A.D.3d 969, 971 (2d Dept. 2018), holding that a borrower entering into a loan modification agreement with the foreclosing plaintiff itselfproves the foreclosing plaintiff's standing to bring a 10-000357 5 of 10 FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022 subsequent foreclosure action following a default in payment under the terms of the loan modification agreement). 18. Thus, and in addition to Defendant's waiver of such a defense, Plaintiff has definitively and unequivocally proven itsstanding to commence this action. 19. As for the statute of limitations, whereby a mortgage foreclosure action such as this has a six-year statute of limitations (see CPLR § 213(4)), not only did Defendant waive such a defense as a matter of law pursuant to CPLR 321I(e) by defaulting in pleading, but there is absolutely no question that the case at bar was timely commenced on January 24, 2020 (NYSCEF Doc. Nos. 1-4), as Defendant's default in payment occurred with the monthly installment due on August 1, 2019, after the mortgage loan was modified by the loan modification agreement effective December 1, 2018. 20. As for Defendant also claiming "laches", it is well-founded law that laches is unavailable when a statute of limitations applies, as itdoes in a mortgage foreclosure action. See New York State Mortgage Loan Enforcement & Admin. Corp. v. North Town Phase II Houses, Is 191 A.D.2d 151, 594 N.Y.S.2d 183 (lst Dept. 1993); First Fed. Sav. & Loan AssI of Rochester v. Capalongo, 152 A.D.2d 833, 544 N.Y.S.2d 44 (3d Dept. 1989). In thatregard, where a Plaintiff waited seventeen (17) years before commencing a foreclosure action, when the statute of limitations at the time was twenty (20) years, the Court still held that the action was timely commenced, and not subject to a laches defense. Wesselman v. Engel Co., 309 N.Y. 27, 309 N.Y. (N.Y.S.) 27, 127 N.E.2d 736 (1955). 21. Here, Defendant defaulted in making her mortgage payment due on August 1, 2019, and after the 90-day notice sent by Plaintiff expired, Plaintiff commenced the case at bar on January 24, 2020. Thus, there is absolutely no question that not only was this action timely 10-000357 6 of 10 FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022 commenced well within the six-year statute of limitations for same, but Plaintiff clearly did not "laches" delay whatsoever in commencing this action to warrant any meritiess defense on the part of Defendant. 22. With respect to service of process and personal jurisdiction over Defendant, "[a] process server's affidavit of service constitutes prima facie evidence of proper service (see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897, 964 N.Y.S.2d 543; Wells Fargo Bank; NA v Chaplin, 65 AD3d 588, 589, 884 N.Y.S.2d 254; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984, 912 N.Y.S.2d 96). 'Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails affidavits' to swear to specific facts to rebut the statements in the process server's (City of New York v Miller, 72 AD3d 726, 727, 898 N.Y.S.2d 643 ; see Emigrant Mtge. Co., Inc. v Westervelt, 352)." 105 AD3d at 897 ; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743, 934 N.Y.S.2d Deutsche Bank Natl. Trust Co. v. Quinones, 114 A.D.3d 719 (2d Dept. 2014). 23. The Affidavit of Service with respect to Defendant was electronically filed herein on February 27, 2020 (NYSCEF Doc. No. 10), which shows that she was properly served on February 8, 2020 in accordance with the personal delivery method permitted by CPLR 308(1) 24. Said Affidavit of Service appears valid on its face, as itis signed by the affiant(i.e., the licensed process server) and accompanied by a certificate thereon to show that same was sworn as true by the affiant in front of a notary public (CPLR §2309[a]). 25. It issettled law in New York that an "affidavit of the process server constitute[s] service" prima facie evidence of proper (Melton, supra) "sufficient to withstand a naked denial of service." receipt of Nazarian v. Monaco Imports, Ltd., 255 A.D.2d 265, 266 (1st Dept. 1998); see 10-000357 7 of 10 FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022 Bank of N.Y. v Espejo, 92 A.D.3d 707, 708 (2d Dept. 2012); Deutsche Bank Natl. Trust Co. v Hussain, 78 A.D.3d 989, 989-990 (2d Dept. 2010); Zara Realty Holding Corp. v E & J Deli & Grocery, Inc., 34 Misc. 3d 1234A (N.Y. Sup. Ct., Queens Cty. 2012). 26. In this case, Defendant's affidavit in opposition clearly does not allege any facts whatsoever to rebut the prima facie evidence of proper personal delivery service of process created by the licensed process servicer's affidavit to even warrant a traverse hearing herein (see Bank of N.Y. v Samuels, 107 A.D.3d 653, 654 (2d Dept. 2013)), let alone the denial of Plaintiffs instant motion. 27. While Defendant cites CPLR 5015, and even quotes most of that statute, the Court will find that she has failed to bring a proper motion under that statute to vacate her default in pleading or the previously entered Order of Reference, and regardless, she has failed to allege any valid justifiable excuse for her default in pleading or potential meritorious defense to this action, and thus, even ifshe had brought a proper motion for such relief,she would not be entitled to same in any event. See HSBC Bank USA, NA v. Lafazan, 115 A.D.3d 647 (2d Dept. 2014); see also Deutsche Bank Natl. Trust Co. v Gutierrez, 102 A.D.3d 825 (2d Dept. 2013); Citimortgage, Inc. v. Pembelton, 39 Misc. 3d 454, 460 (Sup. Ct., Suffolk Cty. 2013), 28. Finally, while Defendant mentions the "American rule is that each side pays their own respective attorneys fees and court costs", in this case, section 22 ofthe consolidated mortgage (NYSCEF Doc. No. 31, pp. 78-79), clearly and unequivocally permits Plaintiff to seek recovery from Defendant "all costs and disbursements and additional allowances allowed by Applicable Law" attorneys' fees" as well as "all reasonable for "any lawsuit for Foreclosure and Sale", and thus rule" Defendant's contentions on this issue are entirely without merit as the "American "can be altered, however, either by statute or contractual agreement between the parties", in including 10-000357 8 of 10 FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022 mortgage foreclosure actions where the mortgage contract signed by the borrower fully permits the lender to recover same. 3 Bergman on New York Mortgage Foreclosures § 26.01 (2022) (citations omitted). 29. Based upon the foregoing, Plaintiff's instant motion for a fmal Judgment of Foreclosure and Sale should be granted in allrespects. See Bank of Am., N.A. v. Lino, 203 A.D.3d 1004, 1005 (2d Dept. 2022) (citations omitted). WHEREFORE, itis respectfully requested that Plaintiff's pending motion be granted in all respects; and such other and further relief as to the Court may seem just and proper. Dated: December 19, 2022 EllisM. Oster, Esq. Senior Associate, Director of Litigation LOGS LEGAL GROUP LLP f/k/a SHAPIRO, DICARO & BARAK, LLC Attorneys for Plaintlyf 175 Mile Crossing Boulevard Rochester, New York 14624 (585) 247-9000 (585) 247-7380 Fax Our File No. 10-000357 To: Celia Walker Defendant, pro se 78 South 1st Street, Apt. 11 Brooklyn, New York 11249 Served via overnight mail 10-000357 9 of 10 FILED: QUEENS COUNTY CLERK 12/19/2022 01:19 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/19/2022 ATTORNEY'S CERTIFICATION I,Ellis M. Oster, am an attorney duly admitted to the practice of law in the State of New York. I am a senior associate of LOGS Legal Group LLP f/k/a Shapiro, DiCaro & Barak, LLC, the attorneys for the Plaintiff, JPMorgan Chase Bank, National Association, in the above captioned civil action. I HEREBY CERTIFY, pursuant to § 130-1.1-a of the Rules of the Chief Administrator (22 NYCRR), to the best of my knowledge, information and belief, formed afteran inquiry reasonable under the circumstances, that the presentation of the papers in this action checked below, or the contentions therein, are not frivolous as defined in subsection (c) of § 130-1.1 of the Rules of the Chief Administrator (22 NYCRR): { } Summons & Complaint { } Answer or Reply { } Attorney Affirmation {X} Other: Reply Affirmation Word Count: The total number of words in this affirmation, exclusive of the caption, signature block, and this Certification Statement is 2,558. DATED: December 19, 2022 EllisM. Oster, Esq. Senior Associate, Director of Litigation LOGS LEGAL GROUP LLP f/k/a SHAPIRO, DICARO & BARAK, LLC Attorneys for Plaintiff 175 Mile Crossing Boulevard Rochester, New York 14624 (585) 247-9000 (585) 247-7380 Fax Our File No. 10-000357 10 of 10