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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
THE BANK OF NEW YORK MELLON, F/K/A THE
INTERES'
BANK OF NEW YORK AS SUCCESSOR IN
TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE
FOR NOVASTAR MORTGAGE FUNDING TRUST,
SERIES 2002-3 NOVASTAR HOME EQUITY LOAN Index No.: 703994/2016
ASSET-BACKED CERTIFICATES, SERIES 2002-3
Plaintiff.
-against-
JOSEPH F. KASPER A/K/A JOSEPH KASPER
LINDA A. KASPER A/K/A LINDA KASPER
NEW YORK CITY ENVIRONMENTAL CONTROL
BOARD
#1" #10,"
"JOHN DOE to "JOHN DOE the last 10
names being fictitious and unknown to plaintiff, the
persons or parties intended being the persons or parties,
if any, having or claiming an interest in or lien upon the
mortgaged premises described in the complaint,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO VACATE
DISMISSAL AND IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT
RESPECTFULLY SUBMITTED,
By: SCALI RIGGS, ESQ.
McCABE, WEISBERG & CONWAY, LLC
Attorneys for Plaintiff
145 Huguenot Street, Suite 210
New Rochelle, New York 10801
914-636-8900
914-636-8901 facsimile
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PRELIMINARY STATEMENT
Plaintiff is the holder of a promissory note in the principal amount of $239,000.00 (the
"Note"). Payment of the Note is secured by a mortgage (the "Mortgage") that encumbers certain
116u'
real property known as 133-18 Street, Jamaica, New York 11420 (the "Premises")
Defendants Joseph F. Kasper A/K/A Joseph Kasper and Linda A. Kasper A/K/A Linda Kasper
(hereinafter "Defendants") are the obligors under the Note and the Mortgagors. In breach of the
terms of the Note and Mortgage, Defendants stopped making monthly payments of principal and
interest, rendering Defendants in default. Plaintiff commenced this action, thereby exercising its
right to demand immediate payment in full. By order of the Honorable Martin J. Schulman,
J.S.C. dated May 2, 2018, this action was dismissed. Plaintiff now brings this application seeking
to vacate the dismissal and restore the action to the Court's active calendar, summary judgment,
default judgment, an amendment to the caption, and appointment of a referee. In support of
Plaintiff's application, Plaintiff provides the Affirmation of Scali Riggs, Esq. ("Riggs Aff."), the
Affidavit of Jennifer Mercier ("Mercier Aff.").
STANDARD OF REVIEW
a. Relief from prior judgment or order
Pursuant to New York Civil Law Practice and Rules ("CPLR") § 5015, a party may move
for relief from a prior order or judgment. CPLR § 5015 states in pertinent part:
a) On Motion. The court which rendered a judgment or order may relieve
a party from itupon such terms as may be just, on motion of any interested
person with such notice as the court may direct, upon the ground of:
1. excusable default, if such motion is made within one year after service
of a copy of the judgment or order with written notice of itsentry upon the
moving party, or, ifthe moving party has entered the judgment or order,
within one year after such entry;
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Pursuant to CPLR § 5015 (a)(1), a party may move for relief from a prior order if there is
a reasonable excuse for the default and there exists a meritorious claim or defense. S_e_e Gray v.
B.R. Trucking Co., 59 N.Y.2d 649, 463 N.Y.S.2d 192, 449 N.E.2d 1270 (1983). A court may
consider law office failure as an excuse. S_ee CPLR 2005. A court has considerable discretion to
accept as a reasonable excuse a party's claim of intervening events and further required work,
provided that the claim is supported by more than conclusory, undetailed, and uncorroborated
claims. GMAC Mtge., LLC v Alfred, 49 Misc 3d 1214, 2015 NY Slip Op 51621(U), *3 (Sup Ct,
Albany County 2015); Thomas v Avalon Gardens Rehabilitation & Health Care Center, 107
AD3d 694, 695, 966 N.Y.S.2d 505 (2d Dep't 2013); Lemberger v Congregation Yetev Lev
D'Satmar, Inc., 33 AD3d 671, 672, 822 N.Y.S.2d 597 (2d Dep't 2006).
When considering whether a party has a reasonable excuse for the default, the court
should consider, "whether the default prejudiced the opposing party, whether it was willful or
evinced intent to abandon the litigation and whether vacating the default would serve the strong
possible."
public policy of resolving cases on their merits when Dimitriadis v. Visiting Nurse
Serv. of N.Y., 84 AD3d 1150 (2d Dep't 2011); See also U.S. Bank, N.A. v. Dick, 67 AD3d 900,
902 (2d Dep't 2009). "What constitutes a reasonable excuse for a default generally lies within
court."
the sound discretion of the motion Rodgers v 66 E. Tremont Hats. Hous. Dev. Fund
_C_ora.,69 AD3d 510, 510 (1st Dept 2010); and "there exists a strong public policy in favor of
merits."
disposing of cases on their Johnson-Roberts v Ira Judelson Bail Bonds, 140 A.D.3d 509,
509 (1st Dep't 2016).
b. Summary judgment standard
Summary judgment is appropriate when there is no issue of material fact and the movant
is entitled to judgment as a matter of law. Zuckerman v. City of N.Y., 49 N.Y.2d 557, 562
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(1980). The movant must sufficiently establish a cause of action for foreclosure so as to cause
the court to grant summary judgment as a matter of law. Giammarino v. Angelo's Royal Pastry
Shop, Inc., 168 A.D.2d 423 (2d Dep't 1990).
"[I]n moving for summary judgment in an action to foreclose a mortgage, a plaintiff
establishes its case as a matter of law through the production of the mortgage, the unpaid note,
default."
and the evidence of EMC Mortgage Corp. v. Riverdale Assocs., 291 A.D.2d 370, 370
(2d Dep't 2002) (internal citations omitted); Federal Home Loan Mortgage Corporation v.
Karastathis, 237 A.D.2d 558 (2d Dep't 1997); HSBC Bank USA v. Merrill, 37 A.D.3d 899, 900
(3d Dep't 2007). Where the required documentation supports plaintiff's motion, the burden shifts
to the defendant to demonstrate, through competent and admissible evidence, the existence of a
viable defense which raises an issue of fact. Paterson v. Rodney, 285 A.D.2d 453, 454 (2d Dep't
2001); E-migrant Mtee. Co.. Inc. v. Beckerman, 105 A.D.3d 895 (2d Dep't 2013); US Bank Natl.
Ass'n v. Denaro, 98 A.D.3d 964 (2d Dep't 2012).
New York courts have repeatedly held that bald, conclusory assertions are insufficient to
raise triable issues of fact. Midland Bank. N.A. v. Embassy East, Inc, 160 A.D. 2d 420, (1st
Dep't 1990); City of New York v. Grosfeld Realty Company, 173 A.D. 2d 436, (2d Dep't 1991);
V. Savino Oil & Heating Co.. Inc. v. Rang Management Corp., 161 A.D. 2d 635 (2d Dep't
1990); Goldstein v. Edwards, 81 A.D. 2d 752, (4th Dep't 1981); Zuckerman v. City of New
York, 49 N.Y.2d 557, 562 (1980) (conclusions, expressions of hope, or unsubstantiated
allegations are insufficient to defeat a motion for summary judgment). In a mortgage foreclosure
action, where the mortgagor fails to raise triable issues of fact, summmy judgment will be
granted. American Savings Bank FSB v. Imperato, 159 A.D.2d 444 (1st Dep't 1990).
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ARGUMENT
POINT I
PLAINTIFF ESTABLISHED ENTITLEMENT TO VACATUR AND RESTORATION
a. Plaintiff's default is excusable
In order to vacate default, a movant must show a reasonable excuse for the default. A
court may, in its discretion, accept law office failure as a reasonable excuse. See, CPLR 2005;
Moore v Day, 55 AD3d 803, 804 (2d Dep't 2008); Putney v Pearlman, 203 AD2d 333 (2d Dep't
1994); Vierva v Briggs & Stratton Corp., 166 AD2d 645 (2d Dep't 1990). "Law office failure
has been interpreted as involving misplaced files, overlooked time periods, preoccupied
like."
attorneys and the Fox v Hartmann, 90 AD2d 510, 511 (2d Dep't 1982) (internal citations
omitted). Unreasonable and inexcusable law office failures include: excessive delays, patterns of
willful default and neglect, and noncompliance with numerous orders or deadlines. Seee Gass v
Gass, 101 AD2d 849, 850 (2d Dep't 1984); See also Stewart v City of NY, 266 AD2d 452 (2d
Dep't 1999).
Here, Plaintiff's initial default is attributable to loss mitigation efforts and such failure is
excusable. On or about January 17, 2018, Plaintiff was advised to file its next motion, or risk
dismissal. Riggs Aff. Ex. Q. At the time, Plaintiff was actively engaged in loss mitigation efforts
with Defendants. Riggs Aff. ¶ 18 Ex. S. Specifically, Plaintiff was negotiating the terms of a
possible trial payment plan in the hopes of entering into a loan modification agreement that
would obviate the need for any further litigation and act as a mutually beneficial resolution for
all parties. In light of those efforts, Plaintiff did not timely file its motion. Although excessive
delays or patterned behavior of missed deadlines may be inexcusable, Plaintiff's delay was
neither patterned nor deliberate, nor was it a manifestation of a desire to abandon the action.
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Justifiable delays result from engagement in litigation communications, discovery, or settlement
talks, and such activities negate any intention to abandon. Brooks v. Somerset Surgical Assocs.,
106 A.D.3d 624 (1st Dep't 2013); Laourdakis v. Torres, 98 A.D.3d 892 (1st Dep't 2012).
"Absent a finding of willfulness or a deliberate default, oversights due to law office failure are
generally liberally excused and the extreme sanction of a default judgment or dismissal is
prejudice."
generally unwarranted absent a showing of Mothon v ITT Hartford Group, Inc., 301
AD2d 999, 1000 (3d Dep't 2003) (quoting Magie v Fremon, 162 AD2d 857, 858, 557 NYS2d
755 (3d Dep't 1990). New York courts have held that "[a]s long as proceedings are being taken,
and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case
dismissal."
should not be subject to Brown v. Rosedale Nurseries, 259 A.D.2d 256, (1st Dep't
1999). Here, Plaintiff's conduct in no way evidenced a desire to abandon the action, rather,
Plaintiff was actively involved in the action. It isclear that Plaintiff was negotiating in good faith
with the intention of procuring an amicable resolution for both parties and the prevention of
further protracted litigation. In addition, Plaintiff timely filed other pleadings in this matter and
appeared at all conferences.
Further, Plaintiff's delay in filing its motion to vacate and restore is attributable to
excusable law office failure. A court does not abuse its discretion by relieving a party of its
default where the default was excusable, having occurred because of administrative or clerical
error, and where there is no prejudice to the opposing party. Wolfram v. Stokes, 51 A.D.2d 690
(N.Y. App. Div. 1st Dep't 1976). New York courts have held that the defalcations of a law firm
employee which result in a default may constitute excusable law office failure. S_ee Polir Constr.,
Inc. v Etingin, 297 AD2d 509, 513 (2002) (replacement of associates at plaintiffs counsel's law
firm was excusable law office failure). Here, based upon my review and personal knowledge of
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MWC's case management system, following the receipt of the May 2, 2018 Order dismissing the
foreclosure proceedings, the matter was escalated to the litigation department and statute of
limitations coordinator. After the necessary reviews were completed, the matter was assigned to
an associate to prepare an application to vacate the dismissal and restore the matter to the Court's
active calendar. A review of MWC's case management system indicates that the individual
assigned to handle the aforementioned application failed to complete the assignment and failed
to notify the supervising attorney. Immediately upon learning of the error, MWC re-assigned the
matter to be handled and the instant motion was filed. This isolated oversight by Plaintiff's
counsel was not deliberate, intentional or a pattern of willful default or neglect. Plaintiff is
actively prosecuting the instant foreclosure proceeding and Plaintiff did not engage in a pattern
of willful default or neglect of this matter. Plaintiff respectfully submits that Plaintiff's excuse
for the aforementioned default is reasonable and that Plaintiff has satisfied the first factor
necessary for the Court to vacate the dismissal.
b. Plaintiff has a meritorious claim
In support of its motion to vacate and restore, a movant must also show the existence of a
meritorious claim. Here, and as part of its initial Complaint, Plaintiff submitted admissible
evidence that Plaintiff is entitled to enforce the Note, that Defendants have defaulted under the
Note, and that the Note is secured by certain Premises. The merits of this action are further
discussed in detail infra. Plaintiff respectfully refers the Court to the remainder of this
memorandum as support of this claim.
c. Courts have inherent power to vacate
Even if the Court was to decline to vacate the dismissal pursuant to CPLR § 5015, the
Court has the inherent power to vacate the dismissal in the interests of justice.
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A court maintains inherent power to vacate a judgment in the interest of justice. Ladd v
Stevenson, 112 N.Y. 325, 332 (1889). The enumerated grounds in CPLR 5015 are neither
preemptive nor exhaustive and CPLR § 5015 does not bar a court from vacating a judgment in
the interest of justice. McMahon v City of New York. 105 AD2d 101, 105 (1sr Dep't 1984). The
statute."
court's power in that respect is inherent and "does not depend upon any Ladd v
Stevenson, 112 NY 325, 332 (1889). "A foreclosure action is equitable in nature and triggers the
court."
equitable powers of the Wells Fargo v. Meyers, 30 Misc. 3d 697 (NYS Sup. Suffolk Cty,
require."
2010). "Once equity is invoked, the court's power is as broad as equity and justice
(2nd
blorstar Bank v. Morabito, 201 A.D. 2d 545, 546 994
Court's strongly prefer to decide cases on their merits (Mitchell v Mid-Hudson Med.
Assoc., 213 AD2d 932, 932 [1995]) and this power may be exercised to relieve a party "from
neglect."
judgments taken through mistake, inadvertence, surprise or excusable (Ladd v
Stevenson, 112 NY 325, 332 (1889) (internal citation omitted). Further, New York courts have
unequivocally held that public policy favors the resolution of cases on the merits. U.S. Bank,
(2"d
N.A. v. Dick, 67 A.D. 3d 900, 902 Dept. 2009).
Moreover, this matter was dismissed for failure to timely file a motion for summary
judgment. Pursuant to CPLR 3213(a), a court may set a time after which no such motion may be
filed, such date being no earlier than thirty days after filing the note of issue. To date, no note of
issue has been filed. As outlined in Plaintiff's underlying motion papers, this action is
meritorious and Plaintiff is highly prejudiced by dismissal of this action. Restoration of these
proceedings to the Court's active calendar does not prejudice the Defendants and would best
serve the interests of justice. Accordingly, Plaintiff respectfully requests that this Court vacate
the dismissal and restore this action to the Court's active calendar.
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POINT II
PLAINTIFF ESTABLISHED ENTITLEMENT TO SUMMARY JUDGMENT
d. Phintiff demonstrated prima facie entitlement to foreciese
Summary judgment is appropriate when there is no issue of material fact and the movant
is entitled to judgment as a matter of law. Zuckerman v. City of N.Y., 49 N.Y.2d 557, 562
(1980). CPLR R 3212 states in relevant part that:
(a) any party may move for Summary Judgment in any action, after issue
has been joined;
(b) A motion for summary judgment shall be supported by affidavit, by a
copy of the pleadings and by other available proof, such as depositions
and written admissions. The affidavit shall be by a person having
knowledge of the facts; it shall recite all the material facts; and itshall
show that there is no defense to the cause of action or that the cause of
action or defense has no merit. The motion shall be granted if,upon all
the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in
directing judgment in favor of any party.
(Emphasis added.)
Regarding foreclosures specifically, the Second Department held that, "in moving for
summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a
matter of law through the production of the mortgage, the unpaid note, and the evidence of
default."
EMC Mortgage Corp. v. Riverdale Assocs., 291 A.D.2d 370, 370 (2d Dep't 2002)
(internal citations omitted); Federal Home Loan Mortgage Corporation v. Karastathis, 237
A.D.2d 558 (2d Dep't 1997); HSBC Bank USA v. Merrill, 37 A.D.3d 899, 900 (3d Dep't 2007).
Here, Plaintiff made a prima facie showing of entitlement to judgment against the
Defendant by submitting the Mortgage, the Note, the required pre-foreclosure notices, and the
Defendants'
affidavit of an employee attesting to default and to Plaintiff's compliance with
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notice requirements.
Where, as here, the required documents support a plaintiff's motion, itis incumbent upon
a defendant to establish the existence of a viable defense to default. Paterson v. Rodney, 285
A.D.2d 453, 454 (2d Dep't 2001); La Salle Bank Nat. Ass'n v. Kosarovich, 31 A.D.3d 904, 906
(3d Dep't 2006). Plaintiff respectfully submits that Defendants have not presented defenses to
default sufficient to establish genuine issues of material fact.
e. Plaintiff has standing
As and for first and fifth affirmative defenses, Defendants alleges that Plaintiff lacks
standing. This claim is wholly without merit.
As an initial matter, Plaintiff need not be a party named in the contract to be entitled to
enforce the contract. In a mortgage foreclosure action, a plaintiff has standing where it is the
holder or assignee of the subject mortgage, and the holder or assignee of the underlying note at
the time the action is commenced. See Bank of New York v. Silverberg, 86 A.D.3d 274, 926
N.Y.S.2d 532 (2d Dep't 2011); Mortgage Electronic Registration Systems, Inc. v. Coakley, 41
A.D.3d 674, (2d Dep't 2007); Federal National Mortgage Association v. Youkelsone, 303
A.D.2d 546 (2d Dep't 2003); First Trust National Assn. v. Meisels, 234 A.D.2d 414 (2d Dep't
1996).
Under New York's Uniform Commercial Code, an instrument indorsed in blank becomes
payable to bearer. N.Y. U.C.C. § 3-204(2). Where an instrument is payable to bearer, the
transferee to whom the instrument is delivered becomes a holder. N.Y. U.C.C. § 3-202(1). A
holder of an instrument may enforce payment of the instrument in his own name. N.Y. U.C.C.
§3-301. The holder may also convert a blank indorsement that consists only of a signature into a
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special indorsement by writing, above the signature of the indorser, words identifying the person
to whom the instrument is made payable. N.Y. U.C.C. § 3-301(c).
Here, Plaintiff took physical possession of the Note, indorsed in blank on October 10,
2012. Mercier Aff. ¶ 5. See also Riggs Aff. Ex. A. As such, Plaintiff became the holder of the
Note, and gained the rights of a holder, including the right to enforce payment of the Note. See
HSBC Bank USA. N.A. v. Corazzini, 148 AD3d 1314, 1315 (3rd Dep't 2017), quoting Citibank
NA v. Abrams, 144 AD3d 1212, 1214 (3rd Dep't 2016) ("Physical delivery of the note prior to
the commencement of the foreclosure action is sufficient to transfer the obligation if it is
indorsed to plaintiff or is indorsed in blank."). See Also JPMorgan Chase Bank, N.A. v.
Weinberger, 142 AD3d 643, 37 NYS3d 286 (2d Dep't 2016); One West Bank, FSB v.
Albanese, 139 AD3d 831, 30 NYS3d 337 (2d Dep't 2016); Wells Fargo Bank, N.A. v.
Gallagher, 137 AD3d 898, 28 NYS3d 84 (2d Dep't 2016); Wells Fargo Bank, N.A. v.
Joseph, 137 AD3d 896, 26 NYS3d 583 (2d Dep't 2016); CitiMortgage. Inc. v. Klein 140 AD3d
913, 33 NYS3d 432 (2d Dep't, 2016).
Further, Plaintiff is the assignee of the Mortgage via written assignment dated October 2,
2012. Riggs Aff. Ex. C. As the entity in possession of the Note as indorsed and the assignee of
the Mortgage, Plaintiff is the proper party to maintain this action. Aurora Loan Services. LLC v.
Taylor, 25 N.Y.3d 355 (2015) aff'm Aurora Loan Services, LLC v. Taylor, 114 A.D.3d 627,
628-29 (2d Dep't 2014) (standing demonstrated where "an affidavit submitted by plaintiff
established that itobtained physical possession of the original note").
Moreover, even if the assignments were invalid (they were not), where a plaintiff
establishes standing through possession of the note at commencement, the assignment of the
mortgage is immaterial. S_ee Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 281 (2d Dep't 2011)
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("physical delivery of the note prior to the commencement of the foreclosure action is sufficient
to transfer the obligation") (internal citations omitted). Accordingly, this Court should strike the
firstand fifth affirmative defenses.
f. Plaintiff has not violated the Truth in Lending Act
As and for second and third affirmative defense, Defendants allege that Plaintiff has not
complied with various provisions of the Truth in Lending Act, that Plaintiff has not provided
Defendants with an accurate annual accounting, and that Defendants are entitled to damages.
Defendants fail to plead these claims with sufficient specificity to put Plaintiff on notice of the
transactions or occurrences, or the specific causes of action, to which Defendants are referring.
Defendants do not meet the pleadings standard required by CPLR § 3013. CPLR § 3013
requires statements in pleadings to be "sufficiently particular to give the court and parties notice
of the transactions, occurrences, or series of transactions or occurrences, intended to be proved
defense."
and the material elements of each cause of action or Further, "defenses which merely
plead conclusions of law without any supporting facts are insufficient, and are therefore fatally
deficient." (2d
Bentivegna v. Meenan Oil Co., Inc., 126 A.D.2d 506, 510 N.Y.S.2d 626 Dept.
1986). Although Defendants some provisions of the Truth in Act, Defendants
specify Lending
point to no provision of the Note or Mortgage which is in violation of that Act. Nor have
Defendants provided any substantiating factual allegations. Vague allegations that Plaintiff
improperly calculated payments or charges are not sufficient to defeat a motion for summary
judgment. Unsubstantiated allegations concerning the impropriety of the Plaintiff's conduct are
insufficient to raise a triable issue of fact with respect to the foreclosure of a mortgage. Bank of
Tokyo-Mitsubishi Trust Co. v. Meredith Ave. 256 A.D.2d 532 (2d Dep't 1998). "Self-
Assocs.,
serving and conclusory allegations do not raise issues of fact and do not require the plaintiff to
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allegations."
respond to alleged affirmative defenses which are based on such See JPMorgan
Chase Bank, N.A. v Corrado, 2016 NY Slip Op 31922[U], *2 (Sup Ct, Suffolk County 2016);
See also Wells Fargo Bank, N.A. v Gaitan, 2014 NY Slip Op 33110[U] (Sup Ct, Queens County
2014) (dismissing defendant's affirmative defenses for failure to allege any facts in support).
default."
Moreover, "an alleged violation of TILA does not constitute an affirmative defense to
Deutsche Bank Natl. Trust Co. v Holler, 56 Misc 3d 1214[A], 2017 NY Slip Op 50993[U], *23
(Sup Ct, Suffolk County 2017).
Further, any claim for damages is time-barred. To bring a claim against a creditor for
statutory damages, the debtor must bring the action "within one year from the dates of the
violation"
occurrence of the in this case, the loan transaction. In re Smith, 737 F.2d 1549, 1552
(11"'
Cir. 1984); 15 U.S.C. § 1640(e). Here, Defendants executed the subject Note on or about
August 29, 2002. Riggs Aff. Ex. A. Accordingly, the time for Defendants to bring a claim for
damages expired in 2003. Similarly, in Bankers Trust v McFarland, 192 Misc 2d 328 [Sup Ct,
Nassau County 2002], a defendant mortgagor's TILA counterclaims were imtimely as the right
to rescind had expired prior to filing the answer. Id. at 333-334.
For these reasons the Court should strike the second affirmative defense.
g. Plaintiff complied with all conditions precedcat to foreclose
As and for fourth and sixth affirmative defenses, Defendants allege that Plaintiff failed to
comply with contractual and statutory notice requiremeñts. This defense is without merit.
Plaintiff has fully complied with all conditions precedent to foreclose.
Defendants allege that Plaintiff failed to mail a notice of default pursuant to the terms of
the Mortgage. The Mortgage states in pertinent part:
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15. Notices Required under this Security Instrument. All notices given
by me or Lender in connection with this Security Instrument will be in
writing. Any notice to me in connection with this Security Instrument is
considered given to me when mailed by first class mail or when actually
delivered to my notice address if sent by other means. Notice to any one
Borrower will be notice to all Borrowers unless Applicable Law expressly
requires otherwise. The notice address is the address of the Property unless
I give notice to Lender of a different address. I will promptly notify
Lender of my change of address. If Lender specifies a procedure for
reporting my change of address, then I will only report a change of address
through that specified procedure. There may be only one designated
notice address under this Security Instrument at any one time. Any notice
to Lender will be given by delivering it or by mailing it by first class mail
to Lender's address stated on the first page of this Security Instrument
unless Lender has given me notice of another address. Any notice in
connection with this Security Instrument is given to Lender when it is
actually received by Lender. If any notice required by this Security
Instrument is also required under Applicable Law, the Applicable Law
requirement will satisfy the corresponding requirement under this Security
Instrument.
22. Lender's Rights If Borrower Fails to Keep Promises and
Agreements. Except as provided in Section 18 of this Security Instrument,
if allof the conditions stated in subsections (a), (b) and (c) of this Section
22 are met, Lender may require that I pay immediately the entire amount
then remaining unpaid under the Note and under this Security instrument
Lender may do this without making any further demand for payment. This
Full."
requirement is called "Immediate Payment in
***
Lender may require Immediate Payment in Full under this Section 22 only
if allof the following conditions are met:
***
(a) Lender sends to me, in the manñer describe in Section 15 of this
Security Instrument, a notice that states:
(1) The promise or agreement that I failed to keep or the default that
has occurred;
(2) The action that I must take to correct that default;
(3) A date by which I must correct the default. That date will be at
least 30 days from the date on which the notice is given;
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FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS THE BANK OF NEW YORK MELLON, F/K/A THE INTERES' BANK OF NEW YORK AS SUCCESSOR IN TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2002-3 NOVASTAR HOME EQUITY LOAN Index No.: 703994/2016 ASSET-BACKED CERTIFICATES, SERIES 2002-3 Plaintiff. -against- JOSEPH F. KASPER A/K/A JOSEPH KASPER LINDA A. KASPER A/K/A LINDA KASPER NEW YORK CITY ENVIRONMENTAL CONTROL BOARD #1" #10," "JOHN DOE to "JOHN DOE the last 10 names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO VACATE DISMISSAL AND IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT RESPECTFULLY SUBMITTED, By: SCALI RIGGS, ESQ. McCABE, WEISBERG & CONWAY, LLC Attorneys for Plaintiff 145 Huguenot Street, Suite 210 New Rochelle, New York 10801 914-636-8900 914-636-8901 facsimile 1 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 PRELIMINARY STATEMENT Plaintiff is the holder of a promissory note in the principal amount of $239,000.00 (the "Note"). Payment of the Note is secured by a mortgage (the "Mortgage") that encumbers certain 116u' real property known as 133-18 Street, Jamaica, New York 11420 (the "Premises") Defendants Joseph F. Kasper A/K/A Joseph Kasper and Linda A. Kasper A/K/A Linda Kasper (hereinafter "Defendants") are the obligors under the Note and the Mortgagors. In breach of the terms of the Note and Mortgage, Defendants stopped making monthly payments of principal and interest, rendering Defendants in default. Plaintiff commenced this action, thereby exercising its right to demand immediate payment in full. By order of the Honorable Martin J. Schulman, J.S.C. dated May 2, 2018, this action was dismissed. Plaintiff now brings this application seeking to vacate the dismissal and restore the action to the Court's active calendar, summary judgment, default judgment, an amendment to the caption, and appointment of a referee. In support of Plaintiff's application, Plaintiff provides the Affirmation of Scali Riggs, Esq. ("Riggs Aff."), the Affidavit of Jennifer Mercier ("Mercier Aff."). STANDARD OF REVIEW a. Relief from prior judgment or order Pursuant to New York Civil Law Practice and Rules ("CPLR") § 5015, a party may move for relief from a prior order or judgment. CPLR § 5015 states in pertinent part: a) On Motion. The court which rendered a judgment or order may relieve a party from itupon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of itsentry upon the moving party, or, ifthe moving party has entered the judgment or order, within one year after such entry; 2 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 Pursuant to CPLR § 5015 (a)(1), a party may move for relief from a prior order if there is a reasonable excuse for the default and there exists a meritorious claim or defense. S_e_e Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 463 N.Y.S.2d 192, 449 N.E.2d 1270 (1983). A court may consider law office failure as an excuse. S_ee CPLR 2005. A court has considerable discretion to accept as a reasonable excuse a party's claim of intervening events and further required work, provided that the claim is supported by more than conclusory, undetailed, and uncorroborated claims. GMAC Mtge., LLC v Alfred, 49 Misc 3d 1214, 2015 NY Slip Op 51621(U), *3 (Sup Ct, Albany County 2015); Thomas v Avalon Gardens Rehabilitation & Health Care Center, 107 AD3d 694, 695, 966 N.Y.S.2d 505 (2d Dep't 2013); Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672, 822 N.Y.S.2d 597 (2d Dep't 2006). When considering whether a party has a reasonable excuse for the default, the court should consider, "whether the default prejudiced the opposing party, whether it was willful or evinced intent to abandon the litigation and whether vacating the default would serve the strong possible." public policy of resolving cases on their merits when Dimitriadis v. Visiting Nurse Serv. of N.Y., 84 AD3d 1150 (2d Dep't 2011); See also U.S. Bank, N.A. v. Dick, 67 AD3d 900, 902 (2d Dep't 2009). "What constitutes a reasonable excuse for a default generally lies within court." the sound discretion of the motion Rodgers v 66 E. Tremont Hats. Hous. Dev. Fund _C_ora.,69 AD3d 510, 510 (1st Dept 2010); and "there exists a strong public policy in favor of merits." disposing of cases on their Johnson-Roberts v Ira Judelson Bail Bonds, 140 A.D.3d 509, 509 (1st Dep't 2016). b. Summary judgment standard Summary judgment is appropriate when there is no issue of material fact and the movant is entitled to judgment as a matter of law. Zuckerman v. City of N.Y., 49 N.Y.2d 557, 562 3 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 (1980). The movant must sufficiently establish a cause of action for foreclosure so as to cause the court to grant summary judgment as a matter of law. Giammarino v. Angelo's Royal Pastry Shop, Inc., 168 A.D.2d 423 (2d Dep't 1990). "[I]n moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, default." and the evidence of EMC Mortgage Corp. v. Riverdale Assocs., 291 A.D.2d 370, 370 (2d Dep't 2002) (internal citations omitted); Federal Home Loan Mortgage Corporation v. Karastathis, 237 A.D.2d 558 (2d Dep't 1997); HSBC Bank USA v. Merrill, 37 A.D.3d 899, 900 (3d Dep't 2007). Where the required documentation supports plaintiff's motion, the burden shifts to the defendant to demonstrate, through competent and admissible evidence, the existence of a viable defense which raises an issue of fact. Paterson v. Rodney, 285 A.D.2d 453, 454 (2d Dep't 2001); E-migrant Mtee. Co.. Inc. v. Beckerman, 105 A.D.3d 895 (2d Dep't 2013); US Bank Natl. Ass'n v. Denaro, 98 A.D.3d 964 (2d Dep't 2012). New York courts have repeatedly held that bald, conclusory assertions are insufficient to raise triable issues of fact. Midland Bank. N.A. v. Embassy East, Inc, 160 A.D. 2d 420, (1st Dep't 1990); City of New York v. Grosfeld Realty Company, 173 A.D. 2d 436, (2d Dep't 1991); V. Savino Oil & Heating Co.. Inc. v. Rang Management Corp., 161 A.D. 2d 635 (2d Dep't 1990); Goldstein v. Edwards, 81 A.D. 2d 752, (4th Dep't 1981); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980) (conclusions, expressions of hope, or unsubstantiated allegations are insufficient to defeat a motion for summary judgment). In a mortgage foreclosure action, where the mortgagor fails to raise triable issues of fact, summmy judgment will be granted. American Savings Bank FSB v. Imperato, 159 A.D.2d 444 (1st Dep't 1990). 4 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 ARGUMENT POINT I PLAINTIFF ESTABLISHED ENTITLEMENT TO VACATUR AND RESTORATION a. Plaintiff's default is excusable In order to vacate default, a movant must show a reasonable excuse for the default. A court may, in its discretion, accept law office failure as a reasonable excuse. See, CPLR 2005; Moore v Day, 55 AD3d 803, 804 (2d Dep't 2008); Putney v Pearlman, 203 AD2d 333 (2d Dep't 1994); Vierva v Briggs & Stratton Corp., 166 AD2d 645 (2d Dep't 1990). "Law office failure has been interpreted as involving misplaced files, overlooked time periods, preoccupied like." attorneys and the Fox v Hartmann, 90 AD2d 510, 511 (2d Dep't 1982) (internal citations omitted). Unreasonable and inexcusable law office failures include: excessive delays, patterns of willful default and neglect, and noncompliance with numerous orders or deadlines. Seee Gass v Gass, 101 AD2d 849, 850 (2d Dep't 1984); See also Stewart v City of NY, 266 AD2d 452 (2d Dep't 1999). Here, Plaintiff's initial default is attributable to loss mitigation efforts and such failure is excusable. On or about January 17, 2018, Plaintiff was advised to file its next motion, or risk dismissal. Riggs Aff. Ex. Q. At the time, Plaintiff was actively engaged in loss mitigation efforts with Defendants. Riggs Aff. ¶ 18 Ex. S. Specifically, Plaintiff was negotiating the terms of a possible trial payment plan in the hopes of entering into a loan modification agreement that would obviate the need for any further litigation and act as a mutually beneficial resolution for all parties. In light of those efforts, Plaintiff did not timely file its motion. Although excessive delays or patterned behavior of missed deadlines may be inexcusable, Plaintiff's delay was neither patterned nor deliberate, nor was it a manifestation of a desire to abandon the action. 5 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 Justifiable delays result from engagement in litigation communications, discovery, or settlement talks, and such activities negate any intention to abandon. Brooks v. Somerset Surgical Assocs., 106 A.D.3d 624 (1st Dep't 2013); Laourdakis v. Torres, 98 A.D.3d 892 (1st Dep't 2012). "Absent a finding of willfulness or a deliberate default, oversights due to law office failure are generally liberally excused and the extreme sanction of a default judgment or dismissal is prejudice." generally unwarranted absent a showing of Mothon v ITT Hartford Group, Inc., 301 AD2d 999, 1000 (3d Dep't 2003) (quoting Magie v Fremon, 162 AD2d 857, 858, 557 NYS2d 755 (3d Dep't 1990). New York courts have held that "[a]s long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case dismissal." should not be subject to Brown v. Rosedale Nurseries, 259 A.D.2d 256, (1st Dep't 1999). Here, Plaintiff's conduct in no way evidenced a desire to abandon the action, rather, Plaintiff was actively involved in the action. It isclear that Plaintiff was negotiating in good faith with the intention of procuring an amicable resolution for both parties and the prevention of further protracted litigation. In addition, Plaintiff timely filed other pleadings in this matter and appeared at all conferences. Further, Plaintiff's delay in filing its motion to vacate and restore is attributable to excusable law office failure. A court does not abuse its discretion by relieving a party of its default where the default was excusable, having occurred because of administrative or clerical error, and where there is no prejudice to the opposing party. Wolfram v. Stokes, 51 A.D.2d 690 (N.Y. App. Div. 1st Dep't 1976). New York courts have held that the defalcations of a law firm employee which result in a default may constitute excusable law office failure. S_ee Polir Constr., Inc. v Etingin, 297 AD2d 509, 513 (2002) (replacement of associates at plaintiffs counsel's law firm was excusable law office failure). Here, based upon my review and personal knowledge of 6 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 MWC's case management system, following the receipt of the May 2, 2018 Order dismissing the foreclosure proceedings, the matter was escalated to the litigation department and statute of limitations coordinator. After the necessary reviews were completed, the matter was assigned to an associate to prepare an application to vacate the dismissal and restore the matter to the Court's active calendar. A review of MWC's case management system indicates that the individual assigned to handle the aforementioned application failed to complete the assignment and failed to notify the supervising attorney. Immediately upon learning of the error, MWC re-assigned the matter to be handled and the instant motion was filed. This isolated oversight by Plaintiff's counsel was not deliberate, intentional or a pattern of willful default or neglect. Plaintiff is actively prosecuting the instant foreclosure proceeding and Plaintiff did not engage in a pattern of willful default or neglect of this matter. Plaintiff respectfully submits that Plaintiff's excuse for the aforementioned default is reasonable and that Plaintiff has satisfied the first factor necessary for the Court to vacate the dismissal. b. Plaintiff has a meritorious claim In support of its motion to vacate and restore, a movant must also show the existence of a meritorious claim. Here, and as part of its initial Complaint, Plaintiff submitted admissible evidence that Plaintiff is entitled to enforce the Note, that Defendants have defaulted under the Note, and that the Note is secured by certain Premises. The merits of this action are further discussed in detail infra. Plaintiff respectfully refers the Court to the remainder of this memorandum as support of this claim. c. Courts have inherent power to vacate Even if the Court was to decline to vacate the dismissal pursuant to CPLR § 5015, the Court has the inherent power to vacate the dismissal in the interests of justice. 7 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 A court maintains inherent power to vacate a judgment in the interest of justice. Ladd v Stevenson, 112 N.Y. 325, 332 (1889). The enumerated grounds in CPLR 5015 are neither preemptive nor exhaustive and CPLR § 5015 does not bar a court from vacating a judgment in the interest of justice. McMahon v City of New York. 105 AD2d 101, 105 (1sr Dep't 1984). The statute." court's power in that respect is inherent and "does not depend upon any Ladd v Stevenson, 112 NY 325, 332 (1889). "A foreclosure action is equitable in nature and triggers the court." equitable powers of the Wells Fargo v. Meyers, 30 Misc. 3d 697 (NYS Sup. Suffolk Cty, require." 2010). "Once equity is invoked, the court's power is as broad as equity and justice (2nd blorstar Bank v. Morabito, 201 A.D. 2d 545, 546 994 Court's strongly prefer to decide cases on their merits (Mitchell v Mid-Hudson Med. Assoc., 213 AD2d 932, 932 [1995]) and this power may be exercised to relieve a party "from neglect." judgments taken through mistake, inadvertence, surprise or excusable (Ladd v Stevenson, 112 NY 325, 332 (1889) (internal citation omitted). Further, New York courts have unequivocally held that public policy favors the resolution of cases on the merits. U.S. Bank, (2"d N.A. v. Dick, 67 A.D. 3d 900, 902 Dept. 2009). Moreover, this matter was dismissed for failure to timely file a motion for summary judgment. Pursuant to CPLR 3213(a), a court may set a time after which no such motion may be filed, such date being no earlier than thirty days after filing the note of issue. To date, no note of issue has been filed. As outlined in Plaintiff's underlying motion papers, this action is meritorious and Plaintiff is highly prejudiced by dismissal of this action. Restoration of these proceedings to the Court's active calendar does not prejudice the Defendants and would best serve the interests of justice. Accordingly, Plaintiff respectfully requests that this Court vacate the dismissal and restore this action to the Court's active calendar. 8 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 POINT II PLAINTIFF ESTABLISHED ENTITLEMENT TO SUMMARY JUDGMENT d. Phintiff demonstrated prima facie entitlement to foreciese Summary judgment is appropriate when there is no issue of material fact and the movant is entitled to judgment as a matter of law. Zuckerman v. City of N.Y., 49 N.Y.2d 557, 562 (1980). CPLR R 3212 states in relevant part that: (a) any party may move for Summary Judgment in any action, after issue has been joined; (b) A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and itshall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if,upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. (Emphasis added.) Regarding foreclosures specifically, the Second Department held that, "in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and the evidence of default." EMC Mortgage Corp. v. Riverdale Assocs., 291 A.D.2d 370, 370 (2d Dep't 2002) (internal citations omitted); Federal Home Loan Mortgage Corporation v. Karastathis, 237 A.D.2d 558 (2d Dep't 1997); HSBC Bank USA v. Merrill, 37 A.D.3d 899, 900 (3d Dep't 2007). Here, Plaintiff made a prima facie showing of entitlement to judgment against the Defendant by submitting the Mortgage, the Note, the required pre-foreclosure notices, and the Defendants' affidavit of an employee attesting to default and to Plaintiff's compliance with 9 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 notice requirements. Where, as here, the required documents support a plaintiff's motion, itis incumbent upon a defendant to establish the existence of a viable defense to default. Paterson v. Rodney, 285 A.D.2d 453, 454 (2d Dep't 2001); La Salle Bank Nat. Ass'n v. Kosarovich, 31 A.D.3d 904, 906 (3d Dep't 2006). Plaintiff respectfully submits that Defendants have not presented defenses to default sufficient to establish genuine issues of material fact. e. Plaintiff has standing As and for first and fifth affirmative defenses, Defendants alleges that Plaintiff lacks standing. This claim is wholly without merit. As an initial matter, Plaintiff need not be a party named in the contract to be entitled to enforce the contract. In a mortgage foreclosure action, a plaintiff has standing where it is the holder or assignee of the subject mortgage, and the holder or assignee of the underlying note at the time the action is commenced. See Bank of New York v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532 (2d Dep't 2011); Mortgage Electronic Registration Systems, Inc. v. Coakley, 41 A.D.3d 674, (2d Dep't 2007); Federal National Mortgage Association v. Youkelsone, 303 A.D.2d 546 (2d Dep't 2003); First Trust National Assn. v. Meisels, 234 A.D.2d 414 (2d Dep't 1996). Under New York's Uniform Commercial Code, an instrument indorsed in blank becomes payable to bearer. N.Y. U.C.C. § 3-204(2). Where an instrument is payable to bearer, the transferee to whom the instrument is delivered becomes a holder. N.Y. U.C.C. § 3-202(1). A holder of an instrument may enforce payment of the instrument in his own name. N.Y. U.C.C. §3-301. The holder may also convert a blank indorsement that consists only of a signature into a 10 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 special indorsement by writing, above the signature of the indorser, words identifying the person to whom the instrument is made payable. N.Y. U.C.C. § 3-301(c). Here, Plaintiff took physical possession of the Note, indorsed in blank on October 10, 2012. Mercier Aff. ¶ 5. See also Riggs Aff. Ex. A. As such, Plaintiff became the holder of the Note, and gained the rights of a holder, including the right to enforce payment of the Note. See HSBC Bank USA. N.A. v. Corazzini, 148 AD3d 1314, 1315 (3rd Dep't 2017), quoting Citibank NA v. Abrams, 144 AD3d 1212, 1214 (3rd Dep't 2016) ("Physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation if it is indorsed to plaintiff or is indorsed in blank."). See Also JPMorgan Chase Bank, N.A. v. Weinberger, 142 AD3d 643, 37 NYS3d 286 (2d Dep't 2016); One West Bank, FSB v. Albanese, 139 AD3d 831, 30 NYS3d 337 (2d Dep't 2016); Wells Fargo Bank, N.A. v. Gallagher, 137 AD3d 898, 28 NYS3d 84 (2d Dep't 2016); Wells Fargo Bank, N.A. v. Joseph, 137 AD3d 896, 26 NYS3d 583 (2d Dep't 2016); CitiMortgage. Inc. v. Klein 140 AD3d 913, 33 NYS3d 432 (2d Dep't, 2016). Further, Plaintiff is the assignee of the Mortgage via written assignment dated October 2, 2012. Riggs Aff. Ex. C. As the entity in possession of the Note as indorsed and the assignee of the Mortgage, Plaintiff is the proper party to maintain this action. Aurora Loan Services. LLC v. Taylor, 25 N.Y.3d 355 (2015) aff'm Aurora Loan Services, LLC v. Taylor, 114 A.D.3d 627, 628-29 (2d Dep't 2014) (standing demonstrated where "an affidavit submitted by plaintiff established that itobtained physical possession of the original note"). Moreover, even if the assignments were invalid (they were not), where a plaintiff establishes standing through possession of the note at commencement, the assignment of the mortgage is immaterial. S_ee Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 281 (2d Dep't 2011) 11 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 ("physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation") (internal citations omitted). Accordingly, this Court should strike the firstand fifth affirmative defenses. f. Plaintiff has not violated the Truth in Lending Act As and for second and third affirmative defense, Defendants allege that Plaintiff has not complied with various provisions of the Truth in Lending Act, that Plaintiff has not provided Defendants with an accurate annual accounting, and that Defendants are entitled to damages. Defendants fail to plead these claims with sufficient specificity to put Plaintiff on notice of the transactions or occurrences, or the specific causes of action, to which Defendants are referring. Defendants do not meet the pleadings standard required by CPLR § 3013. CPLR § 3013 requires statements in pleadings to be "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved defense." and the material elements of each cause of action or Further, "defenses which merely plead conclusions of law without any supporting facts are insufficient, and are therefore fatally deficient." (2d Bentivegna v. Meenan Oil Co., Inc., 126 A.D.2d 506, 510 N.Y.S.2d 626 Dept. 1986). Although Defendants some provisions of the Truth in Act, Defendants specify Lending point to no provision of the Note or Mortgage which is in violation of that Act. Nor have Defendants provided any substantiating factual allegations. Vague allegations that Plaintiff improperly calculated payments or charges are not sufficient to defeat a motion for summary judgment. Unsubstantiated allegations concerning the impropriety of the Plaintiff's conduct are insufficient to raise a triable issue of fact with respect to the foreclosure of a mortgage. Bank of Tokyo-Mitsubishi Trust Co. v. Meredith Ave. 256 A.D.2d 532 (2d Dep't 1998). "Self- Assocs., serving and conclusory allegations do not raise issues of fact and do not require the plaintiff to 12 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 allegations." respond to alleged affirmative defenses which are based on such See JPMorgan Chase Bank, N.A. v Corrado, 2016 NY Slip Op 31922[U], *2 (Sup Ct, Suffolk County 2016); See also Wells Fargo Bank, N.A. v Gaitan, 2014 NY Slip Op 33110[U] (Sup Ct, Queens County 2014) (dismissing defendant's affirmative defenses for failure to allege any facts in support). default." Moreover, "an alleged violation of TILA does not constitute an affirmative defense to Deutsche Bank Natl. Trust Co. v Holler, 56 Misc 3d 1214[A], 2017 NY Slip Op 50993[U], *23 (Sup Ct, Suffolk County 2017). Further, any claim for damages is time-barred. To bring a claim against a creditor for statutory damages, the debtor must bring the action "within one year from the dates of the violation" occurrence of the in this case, the loan transaction. In re Smith, 737 F.2d 1549, 1552 (11"' Cir. 1984); 15 U.S.C. § 1640(e). Here, Defendants executed the subject Note on or about August 29, 2002. Riggs Aff. Ex. A. Accordingly, the time for Defendants to bring a claim for damages expired in 2003. Similarly, in Bankers Trust v McFarland, 192 Misc 2d 328 [Sup Ct, Nassau County 2002], a defendant mortgagor's TILA counterclaims were imtimely as the right to rescind had expired prior to filing the answer. Id. at 333-334. For these reasons the Court should strike the second affirmative defense. g. Plaintiff complied with all conditions precedcat to foreclose As and for fourth and sixth affirmative defenses, Defendants allege that Plaintiff failed to comply with contractual and statutory notice requiremeñts. This defense is without merit. Plaintiff has fully complied with all conditions precedent to foreclose. Defendants allege that Plaintiff failed to mail a notice of default pursuant to the terms of the Mortgage. The Mortgage states in pertinent part: 13 of 20 FILED: QUEENS COUNTY CLERK 11/28/2018 03:20 PM INDEX NO. 703994/2016 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 11/28/2018 15. Notices Required under this Security Instrument. All notices given by me or Lender in connection with this Security Instrument will be in writing. Any notice to me in connection with this Security Instrument is considered given to me when mailed by first class mail or when actually delivered to my notice address if sent by other means. Notice to any one Borrower will be notice to all Borrowers unless Applicable Law expressly requires otherwise. The notice address is the address of the Property unless I give notice to Lender of a different address. I will promptly notify Lender of my change of address. If Lender specifies a procedure for reporting my change of address, then I will only report a change of address through that specified procedure. There may be only one designated notice address under this Security Instrument at any one time. Any notice to Lender will be given by delivering it or by mailing it by first class mail to Lender's address stated on the first page of this Security Instrument unless Lender has given me notice of another address. Any notice in connection with this Security Instrument is given to Lender when it is actually received by Lender. If any notice required by this Security Instrument is also required under Applicable Law, the Applicable Law requirement will satisfy the corresponding requirement under this Security Instrument. 22. Lender's Rights If Borrower Fails to Keep Promises and Agreements. Except as provided in Section 18 of this Security Instrument, if allof the conditions stated in subsections (a), (b) and (c) of this Section 22 are met, Lender may require that I pay immediately the entire amount then remaining unpaid under the Note and under this Security instrument Lender may do this without making any further demand for payment. This Full." requirement is called "Immediate Payment in *** Lender may require Immediate Payment in Full under this Section 22 only if allof the following conditions are met: *** (a) Lender sends to me, in the manñer describe in Section 15 of this Security Instrument, a notice that states: (1) The promise or agreement that I failed to keep or the default that has occurred; (2) The action that I must take to correct that default; (3) A date by which I must correct the default. That date will be at least 30 days from the date on which the notice is given; 14 of 20 FILED: