Preview
FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
JPMorgan Chase Bank, National Association,
Plaintiff(s), AFFIRMATION IN
OPPOSITION
- against -
Indemo. E32U2020
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
Doe"
Bureau; "John Doe"; "John Doe"; "John Doe"; "John
Defendant(s).
Steven M. Palmer, 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 associate of LOGS Legal Group LLP the attomeys of record for Plaintiff
in this action, and as such, I am fully familiar with the facts and circumstances underlying this
action.
2. I submit this affirmation in opposition to Defendant Celia A. Walker (hereinafter
"Defendant Walker")'s Motion to Dismiss.
3. Defendant Walker claims that the above-referenced residential foreclosure action
must be dismissed based on Statute of Limitations, Laches, Lack of Standing, Lack of Personal
Jurisdiction and also claims that Defendant does not owe the amount alleged in the Complaint
and that Defendant was never served with a copy of a Motion for Default Judgment. It is noted
that Defendant Walker's current motion is almost exactly the same as Defendant Walker's
10-000357
1 of 13
. INDEX NO. 701321/2020
FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023
Opposition to Plaintiff's Motion to Confirm the Referee's Report and for a Judgment of
Foreclosure and Sale submitted as NYSCEF Document No. 711.
BRIEF PROCEDURAL BACKGROUND
4. The instant foreclosure action was commenced by filing the Summons and
Defendant'
Complaint and Notice of Pendency on January 24, 2020, based upon Walker default
in payment beginning with the mortgage installment due for August 1, 2019. See NYSCEF Doc.
Nos. 1-3).
5. Defendant Celia A. Walker was personally served with the Summons and
Complaint and Notice of Pendency on February 8, 2020. See NYSCEF Doc. No.10.
6. The Honorable Denis J. Butler, J.S.C. granted an Order of Reference and Default
Judgment and Order Extending Time to Complete Service, nunc pro tune, on April 22, 2022
(entered April 22, 2022). See NYSCEF Doc. Nod. 46 and 49.
7. Plaintiff currently has a Motion to Confirm the Referee's Report and for a
Judgment of Foreclosure and Sale pending with the Court. See NYCEF Doc Nos. 63-69.
8. Defendant Walker submitted opposition to Plaintiff's Motion to Confirm the
Referee's Report and for a Judgment of Foreclosure and Sale (see Doc No. 71) and Plaintiff filed
a Reply to Defendant Walker's Opposition (see Doc No. 74, also annexed hereto as Exhibit
"A"). It is noted that Defendant Walker's Opposition to Plaintiff's Motion to Confirm the
Referee's Report and for a Judgment of Foreclosure and Sale and the instant Motion to Dismiss
1 No."
"NYSCEF Doc. refers to the document number assigned by the Court's electronic docket
for this action. "CPLR 2214(c) was amended, effectively July 22, 2014...to provide that in an e-
filed action, absent a court directive to the contrary, a part Ieed not include copies of papers that
were filed previously electronically with the court, but may reference to them, giving the docket
system' amended)"
numbers on the e-filing (see L 2014, ch 19, §l, as Nationstar Mtge., v.
Bailey, 175 A.D.3d 697, 698 (2d Dept 2019).
10-000357
2 of 13
FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023
raise the same arguments in basically the exact same format and context. Plaintiff incorporates
and realleges its responses in its Reply Papers to the instant Motion to Dismiss herein.
9. For the reasons set forth below, Defendant Walker's Motion to Dismiss must be
denied in its entirety.
PLAINTIFF'S ACTION IS TIMELY
10. The statute of limitations for a residential foreclosure action is six years. See
Buywise Holdings, LLC v. Harris, 31 A.D.3d 681, 821 N.Y.S.2d 213 (2d Dept. 2006); See also
CPLR 213(4); see also CPLR 213(4).
11. Here, Defendant Walker defaulted in repayment of the subject mortgage, which is
a December 1, 2018 Loan Modification, beginning with the monthly installment due on August
1, 2019 and Plaintiff commenced the instant action by filing the Summons, Complaint and
Notice of Pendency on January 24, 2020, well within 6 years from default.
12. Therefore, the current action is timely.
DEFENDANT'S LACHES DEFENSE FAILS
13. The equitable defense of laches is [the] prejudicial delay in the assertion of rights.
One W. Bank v. Coffey, 2018 NY.Slip. OP 32012 [U] ( Sup. Ct. Suffolk County 2018), citing
2nd
Deutsche Bank National Trust Company v. Joseph, 117 A.D.3d. 982, 986 ( Dep't 2014),
quoting Sein v. Doukas, 98 A.D. 3d, 1026, 1028 (2nd Dep't 2012).
14. With regard to residential foreclosure actions, the defense of laches is not
available if the action was timely commenced. First Fed. S&L v. Capalongo, 152 A.D. 2d 833,
(3rd
834 Dep't 1989) (internal CitatiOnS Omitted).
15. As noted above, Defendant Walker defaulted on the December 1, 2018 Loan
Modification by failing to remit the August 1, 2019 monthly installment. Plaintiff commenced
10-000357
3 of 13
FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023
the foreclosure action on 24, 2020, well within the statutory timeframe, and without
January
delay.
16. As it is undisputed that Plaintiff's action is timely, the Court must deny Defendant
Walker's laches defense in its entirety.
DEFENDANT'S DEFAULT PRECLUDES ASSERTING STANDING AFFIRMATIVE
DEFENSES
17. "Where applicable, RPAPL § 1302-a places the defense of standing on a footing
3211(e)."
comparable with the other defenses that are exempt from the waiver provisions of CPLR
GMAC Mortg., LLC v. Winsome Coombs, 191 A.D.3d 37, 48 (2020). Nevertheless:
i. "[E]ven where applicable, [RPAPL § 1302-a] does not impact the
operation of CPLR 3018(b) or case law holding that 'where, as here,
standing is not an essential element of the cause of action, under CPLR
3018(b) a defendant must affirmatively plead lack of standing as an
affirmative defense in the answer in order to properly raise the issue in its
pleading.'"
responsive Id. at 47.
18. In this case, Defendant Walker defaulted in timely appearing or answering the
Complaint and the Court granted Plaintiff a Default Judgment and Order Reference on April 22,
2022. (NYSCEF Doc Nos. 46 and 49).
19. "Since the affirmative defense of lack of standing was never properly raised by the
defendant, [ ] [P]laintiff [is] not required to disprove that defense to obtain the relief it [seeks] in
motion."
its HSBC Bank USA, Nafl AssI v. Diallo, 190 A.D.3d 959, 959(2d Dept. 2021) (internal
citations omitted); Deutsche Bank Nafl Tr. Co. v. Hall, 185 A.D.3d 1006, 1011 (2d Dept. 2020).
10-000357
4 of 13
FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023
20. Thus, notwithstanding the provisions of RPAPL 1302-a, an objection to Plaintiff's
default."
standing "is one of the defenses precluded by defendant[']s continuing Deutsche Bank
Nat'l Tr. Co. v. Ford, 183 A.D.3d 1168, 1170 (3d Dept. 2020). In that regard, although the plain
language of the statute provides an exemption to waiver of the affirmative defense of standing for
defendants in certain foreclosures actions, it does not provide an exemption to the rule requiring a
demonstration of a reasonable excuse for a failure to answer as a prerequisite to the vacatur of a
defendant's default. Forf, supra; JPMorgan Chase Bank, Nat'l AssI v. Carducci, 67 Misc. 3d 561,
564 (Sup. Ct., Westchester Cty. 2020); CPLR § 5015(a)(1); see also Wells Fargo Bank, N.A. v.
Nesci, 186 A.D.3d 1584, 1586 (2d Dept. 2020).
21. Consequently, in the absence of a reasonable excuse for his/her default, the
provisions of RPAPL 1302-a offer no support to Defendant Walker's contention that Plaintiff must
now demonstrate its standing before proceeding to sale. Bank of Am. v. Teodorescu, 187 A.D.3d
831, 831 (2d Dept. 2020); US Bank Nat'l AssI v. Eisler, 188 A.D.3d 1288, 1289 (2d Dept. 2020);
Winsome Coombs, supra; Nesci, supra.
22. Nevertheless, Plaintiff further proved its standing to bring this action as (1)
Plaintiff is the original lender and thus its standing is established by the lending documents
themselves. 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
via an Assignment of Mortgage dated January 29, 2010 (NYSCF Doc. No. 32), Chase Home
Finance, LLC subsequently merged with and into Plaintiff, JPMorgan Chase Bank, National
Association, effective May 1, 2011 ( copy of the certificate of merger is annexed hereto as Exhibit
"B" became the note
) and thus, Plaintiff, which is the original lender once again automatically
and mortgage holder upon said merger with the assignee pursuant to Banking Law §602 (MTGLQ
10-000357
5 of 13
FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023
(3rd
Investors L.P. v. Miciotta, 204 A.D. 3d. 1119 Dep't 2022), and (3) Defendant entered into two
loan modifications 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 with the foreclosing plaintiff proves the foreclosing plaintiff's standing to
bring a subsequent foreclosure action following default in payment under the terms of the loan
modification agreement by Defendant.
23. Thus, Plaintiff has established its standing to commence this action.
SERVICE WAS PROPER AND THE COURT HAS PERSONAL JURISDICTION OVER
DEFENDANT WALKER
24. A process server's affidavit of service attesting to personal delivery of a summons
to a defendant is sufficient, prima facie, to establish jurisdiction. Eastern Sav. Bank, FSB v.
(2nd
Campbell, 167 A.D. 3d 712, 714 Dep't 2018).
25. Here, as sworn to by Mohammad Abuhamda on February 13, 2020, Defendant
Walker was personally served with the Summons, Complaint, and 1303 Notice on February 8,
18t
2020 at 78 S. Street, Apt. 11, Brooklyn, NY 11249. See NYCEF Doc. No. 10.
26. "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
affidavits'
defendant fails to swear to specific facts to rebut the statements in the process server's
10-000357
6 of 13
FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023
(City of New York v Miller, 72 AD3d 726, 727, 898 N.Y.S.2d 643; see Emigrant Mtge. Co., Inc.
v Westervelt, 105 AD3d at 897; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743, 934 N.Y.S.2d
352)."
Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719, 719 (2d Dept. 2014).
27. Here, the affidavit of Plaintiff's process server, Mohammad Abuhamda, appears
all-together proper, as it was sworn as true before a notary public [See CPLR 2309(a)] and
Defendant Walker fails to specifically identify any discrepancy with Plaintiff's proper service of
18t
the Summons and Complaint upon Defendant Walker at 78 S. Street, Apt, 11, Brooklyn, NY
11249. Moreover, pursuant to Mohammad Abuhamda's Affidavit of Service, Defendant Walker
personally accepted service of process in hand and identified herself as Defendant Walker during
service. See NYCEF Doc. 10. As such, and contrary to Defendant Walker's contentions, there was
no need to complete service of process relative to Defendant Walker by any other means.
28. Therefore, Defendant Walker's bare, naked and conclusory denial of service in an
affidavit fails to rebut the presumption of proper service created by the process server's affidavit.
See Melton, supra, U.S. Bank Nat'l AssI v. Dass, 200 A.D.3d 1003 (2d Dept. 2021); Wells Fargo
Bank, N.A. v. Leonardo, 167 A.D.3d 816, 817 (2d Dept. 2018); JP Morgan Chase Bank v. Dennis,
166 A.D.3d 530, 531 (1st Dept. 2018) (Defendant's denial of service of assertion that the
defendant"
description of the person served "does not match the description of is insufficient to
(1st Dept'
rebut the presumption), see also Nazarian v. Monaco Imports, Ltd., 255 A.D. 2d 265,266
(2nd
1998); Bank of N.Y. v. Espejo, 92 A.D. 3d 707, 708 Dep't 2012); Deutsche Bank Natl. Trust
Co. v. Hussain, 78 A.D. 3d. 989, 989-990 (2nd Dep't 2010); Zara Realty Holding Corp. v. E& J
Deli & Grocery, Inc., 34 Misc. 3d 1234A (N.Y. Sup. Ct. Queens Cty, 2012).
29. Thus, service of process was properly effectuated over Defendant Walker
30. As such, the Court has personal jurisdiction over Defendant Walker.
10-000357
7 of 13
FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023
31. Therefore, Defendant Walker's motion to dismiss based on lack of personal
jurisdiction must be denied in its entirety.
DEFENDANT WALKER WAS SERVED WITH PLAINTIFF'S MOTION FOR A
DEFAULT JUDGMENT AND ORDER OF REFERENCE
32. As sworn to by Jenna Hastings on November 3, 2021, Plaintiff served Defendant
Walker with a Motion for a Default Judgment and Order of Reference along with its supporting
Affirmations and Exhibits by first class mail on November 3, 2021 by mailing a copy of same to
1"
Defendant Walker at 78 South Street, Apartment 11, Brooklyn, NY 11249, which is the same
address that Defendant Walker was personally served with the Summons and Complaint. See
NYSCEF Doc. No. 25.
33. In addition, Plaintiff also electronically filed the above referenced Motion for a
Default Judgment and Order of Reference on NYCEF as Doc Nos. 24- 41.
34. Furthermore, by virtue of the Adjournment Letter dated December 27, 2021 and
uploaded to NYSCEF as Doc. No. 44, Plaintiff gave further notice of the pending motion to
Defendant Walker.
35. Therefore, Defendant Walker was served with the Motion for Default Judgment
and Order of Reference and, by virtue of the Adjournment Letter was reminded that Plaintiff had
a Motion pending before the Court. As Defendant Walker did not file any opposition to said
motion, the Court properly granted Plaintiff's motion in all respects on April 22, 2022.
36. Thus, Defendant Walker's bare and conclusionary claim that he/she was not given
notice of said motion must be denied.
10-000357
8 of 13
FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023
DEFENDANT HAS FAILED TO ALLEGE A JUSTIFIABLE EXCUSE TO VACATE
THE DEFAULT JUDGMENT PREVIOUSLY ENTERED HEREIN
37. In order for the Court to excuse Defendant Walker's default of filing a timely
answer pursuant to CPLR 5015(a)(1), Defendant would need to demonstrate both a meritorious
defense and a justifiable excuse to vacate his default in pleading. Korea Exchange Bank v. Attilio,
186 A.D.2d 634, 589 N.Y.S.2d 48 (2d Dept. 1992) (citing Vieyra v. Brigg & Stratton Corp., 166
A.D.2d 645, 561 N.Y.S.2d 74).
38. In that regard, there is no affidavit by Defendant Walker contained in the papers
served upon your deponent's office wherein Defendant alleges any excuse, let alone a justifiable
excuse, to vacate his/her default in pleading.
39. Further, it is well-established that conclusory allegations denying service of
process, but otherwise failing to allege any substantive or sufficient facts to refute the accuracy or
content of an affidavit of service, will be insufficient to establish any entitlement whatsoever to a
traverse hearing. Wunsch v. Cerwinski, 36 A.D.3d 612, 828 N.Y.S.2d 157 (2d Dept. 2007);
Simmons First Natl. Bank v. Mandracchia, 248 A.D.2d 375, 669 N.Y.S.2d 646 (2d Dept. 1998);
Manhattan Say. Bank v. Kohen, 231 A.D.2d 499, 647 N.Y.S.2d 256 (2d Dept. 1996); Genway
Corp. v. Elgut, 177 A.D.2d 467, 575 N.Y.S.2d 899 (2d Dept. 1991).
40. As a result, given that there is no affidavit by Defendant Walker alleging either (1)
defective service or lack of personal jurisdiction, or (2) a justifiable excuse for his/her default in
pleading herein, Defendant Walker's Motion to Dismiss should denied. See P& L Group, Inc. v.
Garfinkel, 150 A.D.2d 663, 541 N.Y.S.2d 535 (2d Dept. 1989); see also Eisenstein v. Rose, 135
A.D.2d 369, 521 N.Y.S.2d 670 (1st Dept. 1987); Fairfield County Trust Co. v. A.M.D.G.
Construction Corp., 16 A.D.2d 653, 226 N.Y.S.2d 521 (2d Dept. 1962).
10-000357
Preview
FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS JPMorgan Chase Bank, National Association, Plaintiff(s), AFFIRMATION IN OPPOSITION - against - Indemo. E32U2020 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 Doe" Bureau; "John Doe"; "John Doe"; "John Doe"; "John Defendant(s). Steven M. Palmer, 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 associate of LOGS Legal Group LLP the attomeys of record for Plaintiff in this action, and as such, I am fully familiar with the facts and circumstances underlying this action. 2. I submit this affirmation in opposition to Defendant Celia A. Walker (hereinafter "Defendant Walker")'s Motion to Dismiss. 3. Defendant Walker claims that the above-referenced residential foreclosure action must be dismissed based on Statute of Limitations, Laches, Lack of Standing, Lack of Personal Jurisdiction and also claims that Defendant does not owe the amount alleged in the Complaint and that Defendant was never served with a copy of a Motion for Default Judgment. It is noted that Defendant Walker's current motion is almost exactly the same as Defendant Walker's 10-000357 1 of 13 . INDEX NO. 701321/2020 FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023 Opposition to Plaintiff's Motion to Confirm the Referee's Report and for a Judgment of Foreclosure and Sale submitted as NYSCEF Document No. 711. BRIEF PROCEDURAL BACKGROUND 4. The instant foreclosure action was commenced by filing the Summons and Defendant' Complaint and Notice of Pendency on January 24, 2020, based upon Walker default in payment beginning with the mortgage installment due for August 1, 2019. See NYSCEF Doc. Nos. 1-3). 5. Defendant Celia A. Walker was personally served with the Summons and Complaint and Notice of Pendency on February 8, 2020. See NYSCEF Doc. No.10. 6. The Honorable Denis J. Butler, J.S.C. granted an Order of Reference and Default Judgment and Order Extending Time to Complete Service, nunc pro tune, on April 22, 2022 (entered April 22, 2022). See NYSCEF Doc. Nod. 46 and 49. 7. Plaintiff currently has a Motion to Confirm the Referee's Report and for a Judgment of Foreclosure and Sale pending with the Court. See NYCEF Doc Nos. 63-69. 8. Defendant Walker submitted opposition to Plaintiff's Motion to Confirm the Referee's Report and for a Judgment of Foreclosure and Sale (see Doc No. 71) and Plaintiff filed a Reply to Defendant Walker's Opposition (see Doc No. 74, also annexed hereto as Exhibit "A"). It is noted that Defendant Walker's Opposition to Plaintiff's Motion to Confirm the Referee's Report and for a Judgment of Foreclosure and Sale and the instant Motion to Dismiss 1 No." "NYSCEF Doc. refers to the document number assigned by the Court's electronic docket for this action. "CPLR 2214(c) was amended, effectively July 22, 2014...to provide that in an e- filed action, absent a court directive to the contrary, a part Ieed not include copies of papers that were filed previously electronically with the court, but may reference to them, giving the docket system' amended)" numbers on the e-filing (see L 2014, ch 19, §l, as Nationstar Mtge., v. Bailey, 175 A.D.3d 697, 698 (2d Dept 2019). 10-000357 2 of 13 FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023 raise the same arguments in basically the exact same format and context. Plaintiff incorporates and realleges its responses in its Reply Papers to the instant Motion to Dismiss herein. 9. For the reasons set forth below, Defendant Walker's Motion to Dismiss must be denied in its entirety. PLAINTIFF'S ACTION IS TIMELY 10. The statute of limitations for a residential foreclosure action is six years. See Buywise Holdings, LLC v. Harris, 31 A.D.3d 681, 821 N.Y.S.2d 213 (2d Dept. 2006); See also CPLR 213(4); see also CPLR 213(4). 11. Here, Defendant Walker defaulted in repayment of the subject mortgage, which is a December 1, 2018 Loan Modification, beginning with the monthly installment due on August 1, 2019 and Plaintiff commenced the instant action by filing the Summons, Complaint and Notice of Pendency on January 24, 2020, well within 6 years from default. 12. Therefore, the current action is timely. DEFENDANT'S LACHES DEFENSE FAILS 13. The equitable defense of laches is [the] prejudicial delay in the assertion of rights. One W. Bank v. Coffey, 2018 NY.Slip. OP 32012 [U] ( Sup. Ct. Suffolk County 2018), citing 2nd Deutsche Bank National Trust Company v. Joseph, 117 A.D.3d. 982, 986 ( Dep't 2014), quoting Sein v. Doukas, 98 A.D. 3d, 1026, 1028 (2nd Dep't 2012). 14. With regard to residential foreclosure actions, the defense of laches is not available if the action was timely commenced. First Fed. S&L v. Capalongo, 152 A.D. 2d 833, (3rd 834 Dep't 1989) (internal CitatiOnS Omitted). 15. As noted above, Defendant Walker defaulted on the December 1, 2018 Loan Modification by failing to remit the August 1, 2019 monthly installment. Plaintiff commenced 10-000357 3 of 13 FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023 the foreclosure action on 24, 2020, well within the statutory timeframe, and without January delay. 16. As it is undisputed that Plaintiff's action is timely, the Court must deny Defendant Walker's laches defense in its entirety. DEFENDANT'S DEFAULT PRECLUDES ASSERTING STANDING AFFIRMATIVE DEFENSES 17. "Where applicable, RPAPL § 1302-a places the defense of standing on a footing 3211(e)." comparable with the other defenses that are exempt from the waiver provisions of CPLR GMAC Mortg., LLC v. Winsome Coombs, 191 A.D.3d 37, 48 (2020). Nevertheless: i. "[E]ven where applicable, [RPAPL § 1302-a] does not impact the operation of CPLR 3018(b) or case law holding that 'where, as here, standing is not an essential element of the cause of action, under CPLR 3018(b) a defendant must affirmatively plead lack of standing as an affirmative defense in the answer in order to properly raise the issue in its pleading.'" responsive Id. at 47. 18. In this case, Defendant Walker defaulted in timely appearing or answering the Complaint and the Court granted Plaintiff a Default Judgment and Order Reference on April 22, 2022. (NYSCEF Doc Nos. 46 and 49). 19. "Since the affirmative defense of lack of standing was never properly raised by the defendant, [ ] [P]laintiff [is] not required to disprove that defense to obtain the relief it [seeks] in motion." its HSBC Bank USA, Nafl AssI v. Diallo, 190 A.D.3d 959, 959(2d Dept. 2021) (internal citations omitted); Deutsche Bank Nafl Tr. Co. v. Hall, 185 A.D.3d 1006, 1011 (2d Dept. 2020). 10-000357 4 of 13 FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023 20. Thus, notwithstanding the provisions of RPAPL 1302-a, an objection to Plaintiff's default." standing "is one of the defenses precluded by defendant[']s continuing Deutsche Bank Nat'l Tr. Co. v. Ford, 183 A.D.3d 1168, 1170 (3d Dept. 2020). In that regard, although the plain language of the statute provides an exemption to waiver of the affirmative defense of standing for defendants in certain foreclosures actions, it does not provide an exemption to the rule requiring a demonstration of a reasonable excuse for a failure to answer as a prerequisite to the vacatur of a defendant's default. Forf, supra; JPMorgan Chase Bank, Nat'l AssI v. Carducci, 67 Misc. 3d 561, 564 (Sup. Ct., Westchester Cty. 2020); CPLR § 5015(a)(1); see also Wells Fargo Bank, N.A. v. Nesci, 186 A.D.3d 1584, 1586 (2d Dept. 2020). 21. Consequently, in the absence of a reasonable excuse for his/her default, the provisions of RPAPL 1302-a offer no support to Defendant Walker's contention that Plaintiff must now demonstrate its standing before proceeding to sale. Bank of Am. v. Teodorescu, 187 A.D.3d 831, 831 (2d Dept. 2020); US Bank Nat'l AssI v. Eisler, 188 A.D.3d 1288, 1289 (2d Dept. 2020); Winsome Coombs, supra; Nesci, supra. 22. Nevertheless, Plaintiff further proved its standing to bring this action as (1) Plaintiff is the original lender and thus its standing is established by the lending documents themselves. 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 via an Assignment of Mortgage dated January 29, 2010 (NYSCF Doc. No. 32), Chase Home Finance, LLC subsequently merged with and into Plaintiff, JPMorgan Chase Bank, National Association, effective May 1, 2011 ( copy of the certificate of merger is annexed hereto as Exhibit "B" became the note ) and thus, Plaintiff, which is the original lender once again automatically and mortgage holder upon said merger with the assignee pursuant to Banking Law §602 (MTGLQ 10-000357 5 of 13 FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023 (3rd Investors L.P. v. Miciotta, 204 A.D. 3d. 1119 Dep't 2022), and (3) Defendant entered into two loan modifications 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 with the foreclosing plaintiff proves the foreclosing plaintiff's standing to bring a subsequent foreclosure action following default in payment under the terms of the loan modification agreement by Defendant. 23. Thus, Plaintiff has established its standing to commence this action. SERVICE WAS PROPER AND THE COURT HAS PERSONAL JURISDICTION OVER DEFENDANT WALKER 24. A process server's affidavit of service attesting to personal delivery of a summons to a defendant is sufficient, prima facie, to establish jurisdiction. Eastern Sav. Bank, FSB v. (2nd Campbell, 167 A.D. 3d 712, 714 Dep't 2018). 25. Here, as sworn to by Mohammad Abuhamda on February 13, 2020, Defendant Walker was personally served with the Summons, Complaint, and 1303 Notice on February 8, 18t 2020 at 78 S. Street, Apt. 11, Brooklyn, NY 11249. See NYCEF Doc. No. 10. 26. "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 affidavits' defendant fails to swear to specific facts to rebut the statements in the process server's 10-000357 6 of 13 FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023 (City of New York v Miller, 72 AD3d 726, 727, 898 N.Y.S.2d 643; see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d at 897; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743, 934 N.Y.S.2d 352)." Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719, 719 (2d Dept. 2014). 27. Here, the affidavit of Plaintiff's process server, Mohammad Abuhamda, appears all-together proper, as it was sworn as true before a notary public [See CPLR 2309(a)] and Defendant Walker fails to specifically identify any discrepancy with Plaintiff's proper service of 18t the Summons and Complaint upon Defendant Walker at 78 S. Street, Apt, 11, Brooklyn, NY 11249. Moreover, pursuant to Mohammad Abuhamda's Affidavit of Service, Defendant Walker personally accepted service of process in hand and identified herself as Defendant Walker during service. See NYCEF Doc. 10. As such, and contrary to Defendant Walker's contentions, there was no need to complete service of process relative to Defendant Walker by any other means. 28. Therefore, Defendant Walker's bare, naked and conclusory denial of service in an affidavit fails to rebut the presumption of proper service created by the process server's affidavit. See Melton, supra, U.S. Bank Nat'l AssI v. Dass, 200 A.D.3d 1003 (2d Dept. 2021); Wells Fargo Bank, N.A. v. Leonardo, 167 A.D.3d 816, 817 (2d Dept. 2018); JP Morgan Chase Bank v. Dennis, 166 A.D.3d 530, 531 (1st Dept. 2018) (Defendant's denial of service of assertion that the defendant" description of the person served "does not match the description of is insufficient to (1st Dept' rebut the presumption), see also Nazarian v. Monaco Imports, Ltd., 255 A.D. 2d 265,266 (2nd 1998); Bank of N.Y. v. Espejo, 92 A.D. 3d 707, 708 Dep't 2012); Deutsche Bank Natl. Trust Co. v. Hussain, 78 A.D. 3d. 989, 989-990 (2nd Dep't 2010); Zara Realty Holding Corp. v. E& J Deli & Grocery, Inc., 34 Misc. 3d 1234A (N.Y. Sup. Ct. Queens Cty, 2012). 29. Thus, service of process was properly effectuated over Defendant Walker 30. As such, the Court has personal jurisdiction over Defendant Walker. 10-000357 7 of 13 FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023 31. Therefore, Defendant Walker's motion to dismiss based on lack of personal jurisdiction must be denied in its entirety. DEFENDANT WALKER WAS SERVED WITH PLAINTIFF'S MOTION FOR A DEFAULT JUDGMENT AND ORDER OF REFERENCE 32. As sworn to by Jenna Hastings on November 3, 2021, Plaintiff served Defendant Walker with a Motion for a Default Judgment and Order of Reference along with its supporting Affirmations and Exhibits by first class mail on November 3, 2021 by mailing a copy of same to 1" Defendant Walker at 78 South Street, Apartment 11, Brooklyn, NY 11249, which is the same address that Defendant Walker was personally served with the Summons and Complaint. See NYSCEF Doc. No. 25. 33. In addition, Plaintiff also electronically filed the above referenced Motion for a Default Judgment and Order of Reference on NYCEF as Doc Nos. 24- 41. 34. Furthermore, by virtue of the Adjournment Letter dated December 27, 2021 and uploaded to NYSCEF as Doc. No. 44, Plaintiff gave further notice of the pending motion to Defendant Walker. 35. Therefore, Defendant Walker was served with the Motion for Default Judgment and Order of Reference and, by virtue of the Adjournment Letter was reminded that Plaintiff had a Motion pending before the Court. As Defendant Walker did not file any opposition to said motion, the Court properly granted Plaintiff's motion in all respects on April 22, 2022. 36. Thus, Defendant Walker's bare and conclusionary claim that he/she was not given notice of said motion must be denied. 10-000357 8 of 13 FILED: QUEENS COUNTY CLERK 02/21/2023 02:03 PM INDEX NO. 701321/2020 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/21/2023 DEFENDANT HAS FAILED TO ALLEGE A JUSTIFIABLE EXCUSE TO VACATE THE DEFAULT JUDGMENT PREVIOUSLY ENTERED HEREIN 37. In order for the Court to excuse Defendant Walker's default of filing a timely answer pursuant to CPLR 5015(a)(1), Defendant would need to demonstrate both a meritorious defense and a justifiable excuse to vacate his default in pleading. Korea Exchange Bank v. Attilio, 186 A.D.2d 634, 589 N.Y.S.2d 48 (2d Dept. 1992) (citing Vieyra v. Brigg & Stratton Corp., 166 A.D.2d 645, 561 N.Y.S.2d 74). 38. In that regard, there is no affidavit by Defendant Walker contained in the papers served upon your deponent's office wherein Defendant alleges any excuse, let alone a justifiable excuse, to vacate his/her default in pleading. 39. Further, it is well-established that conclusory allegations denying service of process, but otherwise failing to allege any substantive or sufficient facts to refute the accuracy or content of an affidavit of service, will be insufficient to establish any entitlement whatsoever to a traverse hearing. Wunsch v. Cerwinski, 36 A.D.3d 612, 828 N.Y.S.2d 157 (2d Dept. 2007); Simmons First Natl. Bank v. Mandracchia, 248 A.D.2d 375, 669 N.Y.S.2d 646 (2d Dept. 1998); Manhattan Say. Bank v. Kohen, 231 A.D.2d 499, 647 N.Y.S.2d 256 (2d Dept. 1996); Genway Corp. v. Elgut, 177 A.D.2d 467, 575 N.Y.S.2d 899 (2d Dept. 1991). 40. As a result, given that there is no affidavit by Defendant Walker alleging either (1) defective service or lack of personal jurisdiction, or (2) a justifiable excuse for his/her default in pleading herein, Defendant Walker's Motion to Dismiss should denied. See P& L Group, Inc. v. Garfinkel, 150 A.D.2d 663, 541 N.Y.S.2d 535 (2d Dept. 1989); see also Eisenstein v. Rose, 135 A.D.2d 369, 521 N.Y.S.2d 670 (1st Dept. 1987); Fairfield County Trust Co. v. A.M.D.G. Construction Corp., 16 A.D.2d 653, 226 N.Y.S.2d 521 (2d Dept. 1962). 10-000357