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  • Wells Fargo Bank, National Association, AS TRUSTEE FOR THE POOLING AND SERVICING AGREEMENT DATED AS OF JUNE 1, 2006 SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2006-FR2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-FR2 v. Miguel Cruz Addarich, Edward Cruz, Mortgage Electronic Registration Systems, Inc. As Nominee For Fremont Investment & Loan, New York City Environmental Control Board, Bronx Supreme Court, New York State Department Of Taxation And Finance, New York State Department Of Taxation And Finance, Discover Bank, New York Transit Adjudication Bureau, Criminal Court Of The City Of New York, Patricia Cruz, Miguel Cruz Foreclosure (residential mortgage) document preview
  • Wells Fargo Bank, National Association, AS TRUSTEE FOR THE POOLING AND SERVICING AGREEMENT DATED AS OF JUNE 1, 2006 SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2006-FR2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-FR2 v. Miguel Cruz Addarich, Edward Cruz, Mortgage Electronic Registration Systems, Inc. As Nominee For Fremont Investment & Loan, New York City Environmental Control Board, Bronx Supreme Court, New York State Department Of Taxation And Finance, New York State Department Of Taxation And Finance, Discover Bank, New York Transit Adjudication Bureau, Criminal Court Of The City Of New York, Patricia Cruz, Miguel Cruz Foreclosure (residential mortgage) document preview
  • Wells Fargo Bank, National Association, AS TRUSTEE FOR THE POOLING AND SERVICING AGREEMENT DATED AS OF JUNE 1, 2006 SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2006-FR2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-FR2 v. Miguel Cruz Addarich, Edward Cruz, Mortgage Electronic Registration Systems, Inc. As Nominee For Fremont Investment & Loan, New York City Environmental Control Board, Bronx Supreme Court, New York State Department Of Taxation And Finance, New York State Department Of Taxation And Finance, Discover Bank, New York Transit Adjudication Bureau, Criminal Court Of The City Of New York, Patricia Cruz, Miguel Cruz Foreclosure (residential mortgage) document preview
  • Wells Fargo Bank, National Association, AS TRUSTEE FOR THE POOLING AND SERVICING AGREEMENT DATED AS OF JUNE 1, 2006 SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2006-FR2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-FR2 v. Miguel Cruz Addarich, Edward Cruz, Mortgage Electronic Registration Systems, Inc. As Nominee For Fremont Investment & Loan, New York City Environmental Control Board, Bronx Supreme Court, New York State Department Of Taxation And Finance, New York State Department Of Taxation And Finance, Discover Bank, New York Transit Adjudication Bureau, Criminal Court Of The City Of New York, Patricia Cruz, Miguel Cruz Foreclosure (residential mortgage) document preview
						
                                

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FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 STATE OF NEW YORK SUPREME COURT: COUNTY OF BRONX X WELLS FARGO BANK, N.A. AS TRUSTEE FOR THE POOLING AND SERVICING AGREEMENT, DATED AS OF JUNE 1, 2006, SECUR1TIZED ASSET BACKED RECEIVABLES LLC TRUST FRE2 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006 FRE2 INDEX NO.: 35998/2015E Plaintiff, vs. MEMORANDUM OF LAW MIGUEL CRUZ ADDARICH; EDWARD CRUZ; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. AS NOMINEE FOR FREMONT INVESTMENT & LOAN; et al Defendant (s), X DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS Statement of issue: Should the Supreme Court grant an Order to dismiss the Foreclosure Complaint or any alternative vacate the order of reference dated September 19, 2016 and allow defendant to attend a settlement conference and to interpose a late answer in the interest of justice , pursuant to NY CPLR 5015(a)1,2,3; CPLR § 3408 and/or dismissal pursuant to RPAPL §§ 1304 and 1306. The Defendant Edward Cruz, respectfully submits that the above issue should be answered in the Affirmative. ARGUMENT The Supreme Court possesses the authority to review the equities with respect to the P] 1 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 parties in determining whether to vacate the judgment pursuant to NY CPLR Section 5015(a)(3). While Courts do not seek to reward litigants from failing to assert arguments in a timely manner, NY CPLR Section 5015(a)(3) is designed to protect the litigants in default from adversaries who are willing to perpetrate fraud, misconduct or misrepresent the truth. See NY CPLR Section 5015(a)(3) and 5015(a)(2). ~ See also, Nash v. Port Authority of New York and New Jersey, 85 A.D.3d 414, 923 NYS 2d 840 (1st Dept. 2011)). A. Defendant's Review of the Court Records Prove Evidence of Fraud, Misconduct and Misrepresentation to this Court. The elements of fraud include the misrepresentation of material existing facts, 03682(1" falsity, scienter, deception and injury. Goldfarb v. Hoffman, 2016 NY Slip Op 03682(1 Dept. 2016) Here, the courts are not concerned with fraud in the inducement of the agreement or in the execution of documents at the time the agreements were entered into which form the basis of the complaint, but rather fraud perpetrated in the procurement of the foreclosure judgment. See Eastern Sav. Bank v. Thomas, 2012 NY Slip Op 30222 (N.Y. Sup. Ct. 2012); Fidelity New York, FSB v. Hanover Companies, Inc., 162 AD2d 582, 583 (1990); Midland Marine Bank v. Hall, 74 AD2d 729 (1980). Courts recognize two types of fraud under NY CPLR Section 5015(a)(3), intrinsic and extrinsic fraud. Intrinsic Fraud typically rests on false claims or perjury. Courts will find that intrinsic fraud exists in the procurement of the Judgment when the defendants can [also] demonstrate both a reasonable excuse for the default and the existence of meritorious [8] 2 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 defenses. U.S. Bank v Arizmendy,2014 N.Y. Slip Op 51275(U)(N.Y. Sup. Ct. 2014); U Bank v. Allen, 102 A.D.3d 955(2013); Deutsche v. Hunter 100 A.D.3d 810(2012) Intrinsic fraud exists in the procurement of this judgment against the Defendants, ipso facto, against all individuals and entities with legal interests in the subject real property because, false claims and material misrepresentations have been made to the court in furtherance of a fraudulent foreclosure. "Where a claim is based on intrinsic fraud, a court may vacate a default judgment pursuant to CPLR 5015(a)(3) provided that the movant demonstrates both a defense." reasonable excuse for the default and the existence of a meritorious Eastern Sav. Bank v. Thomas, 2012 NY Slip Op 30222 (N.Y. Sup. Ct. 2012). While NY CPLR 5015(a)(3) has no express time limit for seeking relief under this time." provision, a party is required to make the application within a "reasonable In Eastern Savings v. Thomas, the appellate court found that waiting more than two years after the Final Judgment of Foreclosure and Sale was unreasonable particularly since no reasonable excuse for the delay had been offered. Eastern Sav. Bank v. Thomas, 2012 NY Slip Op 30222 (N.Y. Sup. Ct. 2012), citing Oppenheimer v. Westcott, 47 NY2d 595, 603 (1979) and CPLR 5015(a)(3). Defendant Johnson made this application in less than one year after said judgment after retaining an Expert Witness and new counsel. This Court may vacate a judgment on the grounds of fraud, misrepresentation, or other misconduct of an adverse party. The instant motion is made within a reasonable time; that being within less than one year after the entry of the Final Judgment. A final judgment is properly vacated and set aside where there is fraud in the procurement of a judgment. Fidelity New York, FSB v. Hanover Companies, Inc., 162 i:~] 3 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 AD2d 582, 583 (2d Dept. 1990); Midland Marine Bank v. Hall, 74 AD2d 729 (4th Dept. 1980). The Defendant has demonstrated that Plaintiff procured the judgment by fraud and misconduct, warranting and justifying vacatur of the Final Judgment. Moreover, in Weizman, the Southern District of New York Court also recognized a presumption in favor of fraud thereby shifting the burden of proof to the Plaintiff to establish the absence of fraud or misconduct. Here, Plaintiff's failure to carry that burden, warrants vacatur of the Final Judgment of Foreclosure and Sale. Weizman Institute v. Neschis, 229 F. Supp. 2d 234(S.D.N.Y. 2002). Either party can easily meet this requirement at an evidentiary hearing. Extrinsic Fraud also involves wrongful acts or trickery or deceit which induced defendants into defaulting or otherwise wrongfully deterred them from litigating Plaintiff's claim once the Defendant justifiably relied on those claims. Based on the intrinsic fraud arguments outlined above, extrinsic Fraud also applies to this case in that Defendant was wrongfully deterred from litigating Plaintiff's claims. See Altman v. Altman, 542 NYS2d 9, (1st Dept. 1989). Prior to his examination of the record, and based on Plaintiff's court submissions, the Defendant believed that he could not successfully mount a defense. See also U.S. Bank v Arizmendy,2014 N.Y. Slip Op 51275(U) (N.Y. Sup. Ct. 2014); U.S. Bank v. Allen, 102 A.D.3d 955(2013); Deutsche v. Hunter 100 A.D.3d 810(2012) B. PLAINTIFF HAS PROVIDED NO EVIDENCE OF COMPLIANCE WITH THE PROVISIONS OF RPAPL 1304 AND 1306 The Legislature is presumed to know the law in existence at the time it enacts legislation, including the pleading requirements of CPLR 3013. See Brady v Village of [>o) 4 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 Malverne, 76 AD3d 691 [2nd Dept 2010]). CPLR 3013 provides that statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. The salient requirement is that the complaint plead specific facts which give notice of what the pleader is claiming and not merely utter conclusions. .3 See Meqna v Becton Dickinson at, Co., 215 AD2d 542 [2nd Dept 1995]. The complaint, as filed by the Plaintiff, merely states a conclusion and no specific facts which show compliance with the provisions of either RPAPL 1304 and 1306. See paragraph Eighteen (18) and Nineteen (19) of Plaintiff's complaint. Said ¶ 13 is reproduced verbatim as follows: Eighteen," Eighteen, If applicable Plaintiff has complied with all of the provisions of Banking Law, Section 595-a and any rules promulgated thereunder, Section 6-l, Section 6-m, and ssections thirteen hundred and four and thirteen hundred and six of the RPAPL." RPAPL. Nineteenighteen," The mortgage complies with the underwriting standards in Banking Law, Section 6-l, as well as the pre-foreclosure and the plaintiff has complied with the and pre- requirements of RPAPL § 1304 1306 regarding the sending and tiling of department" foreclosure notice with the Banking Clearly, statements pleaded by Plaintiff in ¶ 18 and ¶ 19 of its complaint are mere conclusions and thus, woefully fall short of the mandatory pleading requirements of CPLR 3013, in this regard. Banking Law, Section 595-a [NYCLS], Section 6-I and Section 6-m, pertain to loans originated between January 1, 2003 and September 1, 2008 and specifically pertains to Interest Only Loans with Balloon Payments, such as the subject loan. Plaintiff herein, has failed to comply with the pleading requirements of RPAPL 1304 and 1306. In addition, Plaintiff also failed to demonstrate strict compliance with the notice requirement of RPAPL 1304 and 1306. [II] 5 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 C. APPLICABILITY OF THE PROVISIONS OF RPAPL §1304 TO THE CASE AT BAR IS NOT AN ISSUE FOR DETERMINATION Plaintiff has unequivocally dth applicability of the provisions of RPAPL §1304, by way of pleading, and is bound by that statement. Plaintiff pleads in paragraph 7(c) of its complaint that it"is in compliance with sending ninety (90) day notices as required by RPAPL §1304.". This statement is clear, unambiguous and conclusive. A judicial admission is any act or statement made during the course of a judicial proceeding which essentially concedes a disputed fact. See Jones v. Morehead, 68 US 155, 17 L.Ed 662, 1 Wall 155 [1863]). Thus, a statement in a pleading admitting certain "conclusive" facts upon which a law is applicable, is an admission and evidence of that fact and no further proof is required. See Zeqarowicz v. Ripatti, 77 AD3d 650, 911 NYS2d 69 [2d Dept., 2010]). Therefore, a formal judicial admission is a substitute for evidence and absolves a party with the need to present evidence that is the substance of the admission. See, State Farm Mutual Auto Insurance Company v. Worthington, 405 F.2d 683 [8th Cir. 1968]). To be considered a formal judicial admission the statement or act must be clear, unequivocal and deliberate, just as Plaintiff made in paragraph 13 of itscomplaint. See, Rahman v. Smith, 40 AD3d 613, 835 NYS2d 404 [2d Dept., 2007]. Plaintiff cannot deviate from the facts that it deliberately pleaded in its complaint. No Proof of Mailing of RPAPL §1304 Notice As a preliminary matter, the Court reviews Plaintiff's compliance with the mandatory pre-commencement notices, prior to reviewing the requirements for an accelerated judgment or for the appointment of a referee The affidavit of mailing sworn " to by Sonja Manderville ("Manderville or "affiant"), on February 24, 2016, on behalf of the Plaintiff, fails to demonstrate compliance with the service requirements of RPAPL 1304 notice, for several reasons. Said affidavit of Simmons, is grossly deficient for the following reasons: a) affiant did not personally mail or claim to mail the required RPAPL 1304 notice to Defendant; [12] 6 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 b) affiant has not provided proof of a standard office practice or procedure, designated to ensure that items are properly addressed and mailed; c) affiant does not claim to be an employee with personal knowledge of Plaintiff's mailing practices and procedures; d) affiant has not described those practices or procedures in detail or at all, denoting the manner in which she acquired the knowledge (ifshe did); e) affiant has not stated how a personal review of the file indicates that those procedures or practices were adhered to with respect to the particular claim. The presumption of receipt may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. See, Residential Holding Corp. . v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2d Dept 2003].). The affidavit of Simmons fails in both respects. The burden is on the [party obligated to provide notice] to present an affidavit of an employee who personally mailed the verification/denial, or on the other hand, an affidavit of an employee with personal knowledge of the office's mailing practices and procedures. Such individual must describe those practices or procedur[es] in detail, explicitly denoting the manner in which she/he acquired the knowledge of such procedures or practices, and how a personal review of the file indicates that those procedures or practices were adhered to with respect to the processing of that particular claim." See Quality Psychological Servs., P.C. v Hartford Ins. Co., 38 Misc 3d 1210[A], 2013 NY Slip Op 50045[U]; see also, Azriliant v Eagle Chase Assoc., 213 AD2d 573 [2d Dept 1995] [the presumption is unavailable in the absence of sufficient evidence attesting to the mailing of the letter or to the existence of an office practice geared to ensure the proper addressing or mailing of correspondence].). ~ In the case at bar, it is not enough to show that some notice was mailed to the borrower. The proof of mailing must demonstrate that the statutory notice was mailed in each instance to each borrower. See, Pennachio v Hermitage Ins. Co., 2013 NY Slip Op 31625[U] [Sup Ct, NY County 2013] [affidavit of mailing for each notice required].) ~ In order to trigger the presumption of mailing, the lender, under RPAPL 1304, [13] 7 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 must provide a sworn statement that the particular document-the — notice-was statutory mailed by a particular person, or that a particular process, which resulted in mailing, was uniformly and diligently followed. It is only when that proof is established, the burden shifts to the borrower. See Matter of ATM One v. Landaverde, 2 NY3d 472, 478 [2004]; Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]; Wells Fargo Bank, NA v. Edwards, 95 AD3d 692 [1st Dept 2012].). Recently, the New York courts have stated that in order to raise the presumption, more than a general mailing affidavit is required. See Comprehensive Mental v Lumbermens Mut. Ins. Co., 4 Misc 3d 133[A], 2004 NY Slip Op 50745[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2004. A review of a copy of the 90 day Notice submitted on the record, indicate that on May 18, 2015, said notice was sent to borrowers via certified USPS mail, with tracking numbers: 70142870000069731782, by the Plaintiff's Attorney Leopold and Assocites, PLLC, see copies attached herein as Exhibit H. However, a search of the USPS tracking system indicates that "Status not available" see copies attached herein as Exhibit O. D. THE NOTICE REQUIREMENT OF RPAPL 1304 IS APPLICABLE TO THE CASE AT BAR AND COMPLIANCE IS MANDATORY Plaintiff has admitted in several of its supporting papers, including its complaint, that service of RPAPL 1304 notice is required in this case. See ¶ 18 of the complaint, attached herein as Exhibit A. For the simple reason that subject mortgaged home is covered under RPAPL 1304, this action was subjected to mandatory settlement conference pursuant to CPLR § 3408. Said conference settlements were not completed after one hearing and there is no lr4] 8 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 "Notice" evidence of to Edward Cruz. Plaintiff further admitted that the notice requirements of RPAPL 1304 apply to the instant action and its employee (Manderville) has sworn that it has been complied with (See ¶ 7 of Manderville's affidavit), see copy attached herein as Exhibit L. However, Sonja Manderville's affidavit, is conclusory, as argued above, in that itdoes not allege any facts as to how compliance was accomplished. She does not state that she personally served the 90-day notice or identify the individual who did so. Nor does she refer to a standard office practice by Nationstar to ensure that items are properly addressed and mailed (see Nocella v Fort Dearborn Life Ins. Co. of NY, 99 AD3d 877 [2nd Dept 2012]). The presumption of receipt by the addressee "may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly mailed" addressed and (Residential Holding Corp. . v Scottsdale Ins. Co., 286 AD2d 679 [2nd Dept 2001]). Plaintiff has, therefore, failed to submit an affidavit of mailing or service evincing that it properly dth mortgagor pursuant to RPAPL 1304 (Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]). Consequently, Plaintiff has not demonstrated strict compliance with RPAPL 1304. RPAPL 1304 provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the type" borrower in at least fourteen-point (RPAPL 1304 [1]; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]). RPAPL 1304 sets forth the requirements for the content of such notice (see RPAPL 1304 [1]), and further provides that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (RPAPL 1304 [2]; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has condition" the burden of establishing satisfaction of this (Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013] citing, Aurora Loan Servs., LLC, 85 AD3d at 106). ~ [>5j 9 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 E. PLAINTI FF HAS ALSO FAILED TO COMPLY WITH THE MANDATORY PROVISIONS OF RPAPL 1306 pleadings,' Plaintif f, by its pleadings, has admitted in paragraph 13 of its complaint that RPAPL 1304 is applicable to the mortgaged property. See paragraph 13 of Defendant's Exhibit A. Plaintiff is bound by its pleadings and cannot go outside of it.Thus , ipso facto, the mandatory provisions of RPAPL 1306 are applicable. "A new RPAPL section 1306 was enacted by the Laws of 2009, c. 507, § 5 [*3](effective February 13, 2010), requiring each lender, assignee or mortgage loan servicer to file with the Superintendent of Banks within three business days of the mailing of the 90-day pre-litigation notice to be given to a borrower of (i) a home loan (RPAPL 1304 [1]), or (ii)a loan covering a residential cooperative interest (CPLR 9-611 [f]), the name, address and telephone number of the borrower, the amount claimed to be due, and the type of loan at issue. Such filing to be made electronically on a form to be prescribed by the Superintendent, and any complaint served in a proceeding pursuant section" to this article shall contain an affirmative allegation of compliance with this (see RPAPL 1306, see also Practice Commentaries, McKinney's Cons.Laws of NY, Book 49 1/2 RPAPL 1306 by Rudolph de Winter). RPAPL 1306 (1) provides in pertinent part that any complaint served in a proceeding initiated pursuant to this article shall contain, as a condition precedent to such proceeding, an affirmative allegation that at the time the proceeding is commenced, the plaintiff has complied with the provisions of this section. Plainti ff failed to plead the statutorily required language. See paragraph 13 of Defendant's Exhibit A attached herein. Inasmuch as the instant action was commenced in 2014, and the 90-day notice requirement of RPAPL 1304 are admitted to apply to the instant action, by way of Plaintif f's pleadings, the additional notice and pleading requirements of RPAPL 1306 also apply. Plaintif f's only sworn allegation of fact pertaining to RPAPL 1304 is made in "7" paragraph of the affidavit of mailing of Simmons, wherein he states that: "The servicing records further show that the 90-day notices required by i:>6] 10 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 statute were mailed to Defendant(s) by regular and certified mail to both the last known mailing address and to the property address on June 5, 2014. These letters were sent in separate envelopes from any other mailing or notice and were accompanied by a list of housing counseling agencies as required by statute. True copies of the 90-day notices sent to Defendant(s) are attached as Exhibit D". Manderville's statement does not swear to the fact but, rather states what the servicing records show. Furthermore, the statement does not mention compliance with RPAPL § 1306 at all and does not specify the date of alleged filing. The only reference to "18" RPAPL 1306 in the complaint is in paragraphs and "19", in which Plaintiff states in conclusory fashion that, if applicable, it has complied with RPAPL 1306. A review of the e-filed records shows no copy of the filing statement, from the New York State Department of Financial Services (DFS) as alleged in the Manderville Affidavit. There is no iota of allegation of compliance with the provisions of RPAPL § 1306 Step 1 or Step 2, by the Plaintiff. These are strict and stringent statutory rules of the Real Property and Proceedings Law, and compliance is mandatory, see letter from DFS attached herein as Exhibit N. Said letter from the New York State Department of Financial Services, clearly indicates that the changes mentioned therein are effective as of January 1, 2014 and that all three Steps are mandatory, since Plaintiff filed its complaint in October 2015 it is bound by those changes. "18" "19" Plaintiff alleges compliance with this in a general sense in paragraph and of Plaintiff's complaint but, fails to allege any details about when or how such filing might have occurred and fails to produce any evidence in admissible form, that Steps 1 and 2 "three" of RPAPL § 1306 were filed with the Superintendent of Banks within business "five" days after giving the improper 90 day Notice and business days of filing the "Notice of Pendency". [17] 11 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 The Second Department has held in Aurora Loan Services LLC v. Weisblum, 85 A.D.3d 95, 103 (2d Dept. 2011), that, "proper service of the RPAPL §1304 notice containing the statutorily-mandated content is a condition precedent to the commencement of the foreclosure action. The plaintiff's failure to show strict compliance dismissal." requires (emphasis added.) (3d The Third Department, in TD Bank, N.A. v. Leroy, 121 A.D. 3d 1206 Dept. 2014), dismissed the Complaint and denied the Plaintiff's motion for summary judgment, holding that the mortgagee failed to comply with the mandatory RPAPL §1304 condition precedent to commencing the foreclosure action. The bank submitted an affidavit of an assistant vice president who averred that the notice was sent and produced a copy of a letter dated more than 90 days prior to commencement along with a certified mail receipt that contained the Defendant's name and address but the notice did not contain a postmark or date of mailing. ~ This evidence was insufficient to demonstrate strict compliance with RPAPL §1304 and precluded judgment in the Plaintiff's favor. I . In TD_ Bank, the Third Department also held that the Plaintiff had failed to satisfy the additional .." Id..." statutory condition precedent under RPAPL §1306. Id. Inasmuch as plaintiff admits that it failed to strictly comply with the condition precedent required by RPAPL 1306, and that failure is not excused, the complaint must be dismissed (cf Hudson City Sav. Bank v. DePasquale, 113 A.D.3d at 596, 977 N.Y S.2d 895 ; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d at 103, 923 N.Y.S.2d 609 )".see also, Hudson City Say. Bank v. Seminario, 2017 NY Slip Op 2631 (N.Y. App. Div., 2017). F. PLAINTIFF HAS FAILED TO COMPLY WITH "GOOD FAITH NEGOTIATIONS" PROVISIONS OF CPLR § 3408 The mere fact that, Plaintiff filed a motion for an order of reference to enter default after only one settlement conference appearance, in which no order to continue with the foreclosure action had been issued by said settlement conference part, faith" demonstrates Plaintiff's "bad negotiation practices. The Plaintiff was fully aware that Defendant Edward Cruz was and is a resident of [18] 12 of 18 FILED: BRONX COUNTY CLERK 02/13/2018 06:30 PM INDEX NO. 35998/2015E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/13/2018 faith" the subject property and in "bad Plaintiff stated that said property was an investment property. Thus, the Plaintiffs actions can be nothing but an attempt to circumvent the rules and continue the noncompliance as stated herein. In pertinent part, Rule § 3408 states: Mandatory settlement conference in residential foreclosure * actions. (a) In any residential foreclosure action involving a home loan as such term is defined in section thirteen hundred four of the real property actions and proceedings law, in which the defendant is a resident of the property subject to foreclosure, the court shall hold a mandatory conference within sixty days after the date when proof of service is filed with the county clerk, or on such adjourned date as has been agreed to by the parties, for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the court deems appropriate. * NB Effective until February 13, 2015 * (a) In any residential foreclosure action involving a high-cost home loan consummated between Januar y first, two thousand three and September first, two thousand eight, or a subprime or nontraditio