Preview
FILED: KINGS COUNTY CLERK 06/07/2018 12:45 PM INDEX NO. 508445/2015
NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/07/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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THE BANK OF NEW YORK MELLON F/K/A THE BANK
OF NEW YORK AS INDENTURE TRUSTEE ON BEHALF
OF THE NOTEHOLDERS AND THE NOTE INSURER OF Index No.: 508445/2015
ABFS MORTGAGE LOAN TRUST 2000-4,
Plaintiff,
-against -
THERESA BRODWITH, INDIVIDUALLY AND AS
ADMINISTRATRIX AND HEIR OF THE ESTATE OF LEROY
BRODWITH, et al.,
Defendants.
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REPLY MEMORANDUM OF LAW IN
FURTHER SUPPORT OF PLAINTIFF'S
MOTION FOR AN ORDER OF REFERENCE
AND IN OPPOSITION TO ESTATE OF
BRODWITH'S CROSS-MOTION
STRADLEY RONON STEVENS & YOUNG, LLP
A Pennsylvania Limited Liability Partnership
Dustin P. Mansoor
100 Park Avenue, Suite 200
New York, New York 10017
Telephone: (212) 812-4135
Facsimile: (646) 282-7180
Attorneys for Plaintiff
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PRELIMINARY STATEMENT
At the outset, it must be noted that Estate of Brodwith is in default and has not sought to
vacate its default in the instant matter. In fact, Estate of Brodwith's cross-motion does not even
seek to vacate its default, much less present any basis for the same. On these grounds alone, the
cross-motion must be denied. Assuming the Court entertains Estate of Brodwith's cross-motion,
j
any arguments attacking the validity of the foreclosure or Plaintiff's purported delay in
foreclosing should not be considered since they have been waived.
Rather than set forth tangible grounds for the Court to deny Plaintiff's motion for an
Order of Reference, Estate of Brodwith's cross-motion essentially asks the Court to determine
the amount owed to Plaintiff. Estate of Brodwith's cross-motion is premature since it will have a
full and fair opportunity to dispute the amount due to Plaintiff at a hearing pursuant to Real
Property Actions and Proceedings Law ("RPAPL") Section 1321. Moreover, Plaintiff's Motion
for an Order of Reference and Estate of Brodwith's cross-motion seek the same relief -
basically
namely that the Court or a Court-appointed Referee ascertain and compute the amount owed to
Plaintiff.
The remainder of Estate of Brodwith's cross-motion sets forth self-serving, conclusory
statements which are nothing more than a desperate attempt to delay the foreclosure. Plaintiff
established its prima facie entitlement to an Order of Reference by producing the mortgage, the
unpaid note, and evidence of default and Estate of Brodwith fails to set forth any facts or
evidence warranting the denial of Plaintiff's Motion for an Order of Reference. Accordingly,
Plaintiff's Motion for an Order of Reference should be granted and Estate of Brodwith's cross-
motion must be denied.
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ARGUMENT
POINT I
PLAINTIFF ESTABLISHED ITS PRIMA
FACIE ENTITLEMENT TO FORECLOSURE
It must be reiterated that Estate of Brodwith is in default in this action and has not sought
to vacate its default. Notwithstanding this crucial fact, Plaintiff established its prima facie
entitlement to foreclosure and there is nothing raised in Estate of Brodwith's cross-motion or in
the record before the Court to warrant the denial of Plaintiff's Motion for an Order of Reference.
In a mortgage foreclosure action, the mortgagee establishes a prima facie entitlement to
judgment by producing evidence of the note, the mortgage and the defendant's default thereon.
See Valley Nat. Bank v. Deutsch, 88 A.D.3d 691 (2d Dep't 2011); Bank Leumi Trust Company of
New York v. Lightning Park, Inc., 215 A.D.2d 246, 247, 626 N.Y.S.2d 202 (1st Dep't 1995).
Here, Plaintiff produced evidence of the Note, Mortgage, and borrower Leroy Brodwith's
"Borrower"
(hereinafter, referred to as "Borrower") default thereunder. See Affidavit of Indebtedness
(" Affidavit"
("Affidavit"), at Exhibit "B"; ¶ 7. Moreover, Estate of Brodwith neither challenges Plaintiff's
authority to foreclose nor does it dispute Borrower's execution of the Note, Mortgage, or the
default thereunder. Instead, the crux of Estate of Brodwith's cross-motion challenges the amount
owed to Plaintiff but as more fully set forth below, such challenges do not preclude the granting
of an Order of Reference.
Therefore, Plaintiff's Motion for an Order of Reference should be granted and Estate of
Brodwith's cross-motion must be denied.
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POINT II
ESTATE OF BRODWITH'S CHALLENGES
TO THE AMOUNT OWED ARE NOT VIABLE
DEFENSES TO FORECLOSURE AND ARE
PREMATURE
The gist of Estate of Brodwith's cross-motion attacks the amount owed to Plaintiff
pursuant to the Note and Mortgage. However, it is well-established that such challenges do not
constitute defenses to foreclosure. Furthermore, Estate of Brodwith will have a full and fair
opportunity to challenge the amount due and owing to Plaintiff at a hearing pursuant to RPAPL
Section 1321 and as such, Estate of Brodwith's cross-motion is premature. For the reasons
delineated herein, Plaintiff's Motion for an Order of Reference should be granted and Estate of
Brodwith's cross-motion must be denied.
"[I]t is well established that claims of wrongful overcharges, insufficient crediting of
amounts paid allegedly resulting in wrongful acceleration and improperly declared defaults have
been held not to constitute a defense to foreclosure, but instead, are matters which the defendant
overpayments."
may put before the court or its referee by application to offset any Flagstar
Bank, FSB v. Davis, 50 Misc.3d 1205(A), at *6, 28 N.Y.S.3d 648 (Table) (Sup.Ct., Suffolk
County, Dec. 21, 2015) (citing First Nationwide Bank, FSB v. Goodman, 272 A.D.2d 433, 707
N.Y.S.2d 669 (2d Dep't 2000); Long Is. Sav. Bank of Centereach, FSB v. Denkensohn, 222
A.D.2d 659, 635 N.Y.S.2d 683 (2d Dep't 1995); Crest/Good Mfg. Co. v. Baumann, 160 A.D.2d
831, 554 N.Y.S.2d 264 (2d Dep't 1990); Johnson v. Gaughan, 128 A.D.2d 756, 757, 513
N.Y.S.2d 244 (2d Dep't 1987); Federal Natl. Mtge. Assn. v. Connelly, 84 A.D.2d 805, 444
N.Y.S.2d 147 (2d Dep't 1981); see also, Shufelt v. Bulfamante, 92 A.D.3d 936, 940 N.Y.S.2d
108 (2d Dept 2012).
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Here, it is clear that Estate of Brodwith's cross-motion fails to present any viable basis to
deny Plaintiff's Motion for an Order of Reference and is premature. After Plaintiff's Motion for
an Order of Reference is granted, Estate of Brodwith will have an opportunity, before the Court
or a Referee appointed by the Court, to challenge the amount owed to Plaintiff. Until such time,
Estate of Brodwith's claims are premature, should not be considered, and do not present viable
grounds to deny Plaintiff's Motion for an Order of Reference.
For these reasons, Plaintiff's Motion for an Order of Reference should be granted and
Defendant's cross-motion must be denied.
POINT III
PURPORTED DELAY IN FORECLOSING IS
NOT A BASIS TO DENY PLAINTIFF'S
MOTION FOR AN ORDER OF REFERENCE
OR FOR FURTHER DISCOVERY
The Estate of Brodwith essentially asserts a laches defense as a basis for the Court to
deny Plaintiff's Motion for an Order of Reference and for the Court to permit Estate of Brodwith
to depose Plaintiff. Again, it must be noted that Estate of Brodwith is in default and has not
sought to vacate its default. On this basis alone, the Court should deny Estate of Brodwith's
cross-motion. Assuming the Court considers Estate of Brodwith's cross-motion, it nonetheless is
well-established that laches is not a valid defense to foreclosure. Second, it is unclear what
information Estate of Brodwith hopes to glean from Plaintiff's deposition. As stated herein,
Estate of Brodwith will have ample opportunity to challenge the amount owed at a hearing
pursuant to RPAPL Section 1321. As more fully detailed below, Plaintiff's Motion for an Order
of Reference should be granted and Estate of Brodwith's cross-motion must be denied.
A. Laches Is Not A Valid Defense to Foreclosure.
The doctrine of laches is not available as a defense so long as the statutory period allowed
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for the commencement of foreclosure has not expired. Wesselman v. Engel Co., 309 N.Y. 27,
32, 127 N.E.2d 736 (1955). Without an acceleration, a separate cause of action accrues for each
mortgage payment that is not paid, and the statute of limitations begins to run on the date each
installment payment becomes due. See Goldman Sachs Mortgage Company v. Mares, 135
A.D.3d 1121, 23 N.Y.S.3d 444 (2d Dep't 2016); see also, Wells Fargo v. Burke, 94 A.D.3d 980,
982, 943 N.Y.S.2d 540 (2d Dep't 2012)
Here, it is undisputed that Plaintiff elected to accelerate the mortgage debt when it
commenced foreclosure proceedings by filing the Summons and Complaint and Notice of
Pendency on July 8, 2015. See Attorney Affirmation in Support of Application, Exhibit "C".
Therefore, the statute of limitations does not expire until July 8, 2021. Accordingly, even
assuming that Estate of Brodwith had not waived its foreclosure defenses by failing to interpose
an Answer, it is clear that the doctrine of laches is inapplicable here.
Moreover, Plaintiff's recovery already is limited in that it cannot recover any payments
which are older than the immediately preceding six (6) years from the date the foreclosure was
commenced. Id. ("[a]s a general matter, an action to foreclose a mortgage may be brought to
recover unpaid sums which were due within the six-year period immediately preceding the
commencement of the action; see also, CPLR § 213(4). In other words, by failing to commence
foreclosure proceedings until July 8, 2015, the only party prejudiced was Plaintiff.
Because laches is not a valid foreclosure defense, Plaintiff's Motion for an Order of
Reference should be granted and Estate of Brodwith's cross-motion must be denied.
B. Estate of Brodwith Has Not Provided Any Evidence That A Deposition of
Plaintiff Will Adduce Relevant Evidence.
Estate of Brodwith fails to proffer any reason to depose Plaintiff. Estate of Brodwith
neither disputes the note, mortgage, or the default thereunder nor can it since it has not vacated
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its default in responding to the complaint. If Estate of Brodwith seeks to depose Plaintiff to
dispute the amount owed to Plaintiff, then it will have every opportunity to do so at a hearing
pursuant to RPAPL Section 1321.
While the "court may deny a motion for summary judgment if 'it appear[s] from
affidavits submitted in opposition to the motion that facts essential to justify opposition may
stated,'
exist but cannot then be [i]t is incumbent upon the opposing party to provide an
evidence."
evidentiary basis to suggest that discovery might lead to relevant Dyer Trust 2012-1
v. Global World Realty, Inc., 140 A.D.3d 827, 828-829, 33 N.Y.S.3d 414 (2d Dep't 2016) (citing
—
Suero-Sosa v. 112 A.D.3d — 977 N.Y.S.2d 61 (2d Dep't see
Cardona, 706, 707-708, 2013);
Lauriello v. Gallotta, 59 A.D.3d 497, 498-499, 873 N.Y.S.2d 690 (2d Dep't 2009); Brewster v.
Five Towns Health Care Realty Corp., 59 A.D.3d 483, 484, 873 N.Y.S.2d 199 (2d Dep't 2009).
Here, Estate of Brodwith fails to identify what relevant facts or evidence it hopes to glean
from a deposition. If the goal of the deposition is to limit the amount Plaintiff can recover on a
judgment of foreclosure, then Estate of Brodwith will have a full and fair opportunity to do so at
a hearing pursuant to RPAPL Section 1321.
Lastly, Estate of Brodwith fails to set forth any facts or evidence supporting its outlandish
assertion that the averments in the Affidavit are false. Estate of Brodwith's own cross-
Notably,
"20,"
motion contradicts itself. In paragraph Estate of Brodwith alleges that the Affidavit is a
hoax" "24,"
"manifest and then in paragraph Estate of Brodwith relies on the Affidavit as
support for its request for a deposition of Plaintiff. Notwithstanding this, there is absolutely no
evidence to support Estate of Brodwith's request that the Court issue an Order referring the
affiant to the New York State Department of Financial Services or to the Kings County District
Attorney and the Court should not entertain this ludicrous request.
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Because laches is not a viable defense to foreclosure and because Estate of Brodwith fails
to provide any justifiable basis to depose Plaintiff, Plaintiff's Motion for an Order of Reference
should be granted and Estate of Brodwith's cross-motion must be denied.
CONCLUSION
Plaintiff has established its prima facie entitlement to foreclosure and Estate of Brodwith,
who is in default in the instant matter, has failed to present any basis to deny Plaintiff's Motion
for an Order of Reference. Any dispute as to the amount owed to Plaintiff will be resolved at a
hearing pursuant to RPAPL Section 1321 and is not a basis to deny Plaintiff's Motion for an
Order of Reference.
WHEREFORE, it is respectfully requested that the Court grant Plaintiff's Motion for an
Order of Reference and that Estate of Brodwith's cross-motion be in its entirety, together with
such other and further relief as this Court deems just and proper.
Dated: June 7, 2018
New York, New York
/s/ Dustin P. Mansoor
Dustin P. Mansoor, Esq.
Stradley Ronon Stevens & Young, LLP
100 Park Avenue, Suite 2000
New York, New York 10017
Telephone: (212) 812-4135
Facsimile: (646) 282-7180
Attorneys for Plaintiff
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Index No. 508445/2015
THE BANK OF NEW YORK MELLON F/K/A
THE BANK OF NEW YORK AS INDENTURE
TRUSTEE ON BEHALF OF THE
NOTEHOLDERS AND THE NOTE INSURER
OF ABFS MORTGAGE LOAN TRUST 2000-4,
Plaintiffs,
-against-
THERESA BRODWITH, INDIVIDUALLY
Preview
FILED: KINGS COUNTY CLERK 06/07/2018 12:45 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/07/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------------------X — ————- ———— THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS INDENTURE TRUSTEE ON BEHALF OF THE NOTEHOLDERS AND THE NOTE INSURER OF Index No.: 508445/2015 ABFS MORTGAGE LOAN TRUST 2000-4, Plaintiff, -against - THERESA BRODWITH, INDIVIDUALLY AND AS ADMINISTRATRIX AND HEIR OF THE ESTATE OF LEROY BRODWITH, et al., Defendants. -------------------------------------------------------------------------------X REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF'S MOTION FOR AN ORDER OF REFERENCE AND IN OPPOSITION TO ESTATE OF BRODWITH'S CROSS-MOTION STRADLEY RONON STEVENS & YOUNG, LLP A Pennsylvania Limited Liability Partnership Dustin P. Mansoor 100 Park Avenue, Suite 200 New York, New York 10017 Telephone: (212) 812-4135 Facsimile: (646) 282-7180 Attorneys for Plaintiff 1 ;-' ss60725 v. 1 of 9 FILED: KINGS COUNTY CLERK 06/07/2018 12:45 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/07/2018 PRELIMINARY STATEMENT At the outset, it must be noted that Estate of Brodwith is in default and has not sought to vacate its default in the instant matter. In fact, Estate of Brodwith's cross-motion does not even seek to vacate its default, much less present any basis for the same. On these grounds alone, the cross-motion must be denied. Assuming the Court entertains Estate of Brodwith's cross-motion, j any arguments attacking the validity of the foreclosure or Plaintiff's purported delay in foreclosing should not be considered since they have been waived. Rather than set forth tangible grounds for the Court to deny Plaintiff's motion for an Order of Reference, Estate of Brodwith's cross-motion essentially asks the Court to determine the amount owed to Plaintiff. Estate of Brodwith's cross-motion is premature since it will have a full and fair opportunity to dispute the amount due to Plaintiff at a hearing pursuant to Real Property Actions and Proceedings Law ("RPAPL") Section 1321. Moreover, Plaintiff's Motion for an Order of Reference and Estate of Brodwith's cross-motion seek the same relief - basically namely that the Court or a Court-appointed Referee ascertain and compute the amount owed to Plaintiff. The remainder of Estate of Brodwith's cross-motion sets forth self-serving, conclusory statements which are nothing more than a desperate attempt to delay the foreclosure. Plaintiff established its prima facie entitlement to an Order of Reference by producing the mortgage, the unpaid note, and evidence of default and Estate of Brodwith fails to set forth any facts or evidence warranting the denial of Plaintiff's Motion for an Order of Reference. Accordingly, Plaintiff's Motion for an Order of Reference should be granted and Estate of Brodwith's cross- motion must be denied. 2 ¹ 3560725 v. 2 of 9 FILED: KINGS COUNTY CLERK 06/07/2018 12:45 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/07/2018 ARGUMENT POINT I PLAINTIFF ESTABLISHED ITS PRIMA FACIE ENTITLEMENT TO FORECLOSURE It must be reiterated that Estate of Brodwith is in default in this action and has not sought to vacate its default. Notwithstanding this crucial fact, Plaintiff established its prima facie entitlement to foreclosure and there is nothing raised in Estate of Brodwith's cross-motion or in the record before the Court to warrant the denial of Plaintiff's Motion for an Order of Reference. In a mortgage foreclosure action, the mortgagee establishes a prima facie entitlement to judgment by producing evidence of the note, the mortgage and the defendant's default thereon. See Valley Nat. Bank v. Deutsch, 88 A.D.3d 691 (2d Dep't 2011); Bank Leumi Trust Company of New York v. Lightning Park, Inc., 215 A.D.2d 246, 247, 626 N.Y.S.2d 202 (1st Dep't 1995). Here, Plaintiff produced evidence of the Note, Mortgage, and borrower Leroy Brodwith's "Borrower" (hereinafter, referred to as "Borrower") default thereunder. See Affidavit of Indebtedness (" Affidavit" ("Affidavit"), at Exhibit "B"; ¶ 7. Moreover, Estate of Brodwith neither challenges Plaintiff's authority to foreclose nor does it dispute Borrower's execution of the Note, Mortgage, or the default thereunder. Instead, the crux of Estate of Brodwith's cross-motion challenges the amount owed to Plaintiff but as more fully set forth below, such challenges do not preclude the granting of an Order of Reference. Therefore, Plaintiff's Motion for an Order of Reference should be granted and Estate of Brodwith's cross-motion must be denied. 3 of 9 FILED: KINGS COUNTY CLERK 06/07/2018 12:45 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/07/2018 POINT II ESTATE OF BRODWITH'S CHALLENGES TO THE AMOUNT OWED ARE NOT VIABLE DEFENSES TO FORECLOSURE AND ARE PREMATURE The gist of Estate of Brodwith's cross-motion attacks the amount owed to Plaintiff pursuant to the Note and Mortgage. However, it is well-established that such challenges do not constitute defenses to foreclosure. Furthermore, Estate of Brodwith will have a full and fair opportunity to challenge the amount due and owing to Plaintiff at a hearing pursuant to RPAPL Section 1321 and as such, Estate of Brodwith's cross-motion is premature. For the reasons delineated herein, Plaintiff's Motion for an Order of Reference should be granted and Estate of Brodwith's cross-motion must be denied. "[I]t is well established that claims of wrongful overcharges, insufficient crediting of amounts paid allegedly resulting in wrongful acceleration and improperly declared defaults have been held not to constitute a defense to foreclosure, but instead, are matters which the defendant overpayments." may put before the court or its referee by application to offset any Flagstar Bank, FSB v. Davis, 50 Misc.3d 1205(A), at *6, 28 N.Y.S.3d 648 (Table) (Sup.Ct., Suffolk County, Dec. 21, 2015) (citing First Nationwide Bank, FSB v. Goodman, 272 A.D.2d 433, 707 N.Y.S.2d 669 (2d Dep't 2000); Long Is. Sav. Bank of Centereach, FSB v. Denkensohn, 222 A.D.2d 659, 635 N.Y.S.2d 683 (2d Dep't 1995); Crest/Good Mfg. Co. v. Baumann, 160 A.D.2d 831, 554 N.Y.S.2d 264 (2d Dep't 1990); Johnson v. Gaughan, 128 A.D.2d 756, 757, 513 N.Y.S.2d 244 (2d Dep't 1987); Federal Natl. Mtge. Assn. v. Connelly, 84 A.D.2d 805, 444 N.Y.S.2d 147 (2d Dep't 1981); see also, Shufelt v. Bulfamante, 92 A.D.3d 936, 940 N.Y.S.2d 108 (2d Dept 2012). 4 0 3560725 v. 4 of 9 FILED: KINGS COUNTY CLERK 06/07/2018 12:45 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/07/2018 Here, it is clear that Estate of Brodwith's cross-motion fails to present any viable basis to deny Plaintiff's Motion for an Order of Reference and is premature. After Plaintiff's Motion for an Order of Reference is granted, Estate of Brodwith will have an opportunity, before the Court or a Referee appointed by the Court, to challenge the amount owed to Plaintiff. Until such time, Estate of Brodwith's claims are premature, should not be considered, and do not present viable grounds to deny Plaintiff's Motion for an Order of Reference. For these reasons, Plaintiff's Motion for an Order of Reference should be granted and Defendant's cross-motion must be denied. POINT III PURPORTED DELAY IN FORECLOSING IS NOT A BASIS TO DENY PLAINTIFF'S MOTION FOR AN ORDER OF REFERENCE OR FOR FURTHER DISCOVERY The Estate of Brodwith essentially asserts a laches defense as a basis for the Court to deny Plaintiff's Motion for an Order of Reference and for the Court to permit Estate of Brodwith to depose Plaintiff. Again, it must be noted that Estate of Brodwith is in default and has not sought to vacate its default. On this basis alone, the Court should deny Estate of Brodwith's cross-motion. Assuming the Court considers Estate of Brodwith's cross-motion, it nonetheless is well-established that laches is not a valid defense to foreclosure. Second, it is unclear what information Estate of Brodwith hopes to glean from Plaintiff's deposition. As stated herein, Estate of Brodwith will have ample opportunity to challenge the amount owed at a hearing pursuant to RPAPL Section 1321. As more fully detailed below, Plaintiff's Motion for an Order of Reference should be granted and Estate of Brodwith's cross-motion must be denied. A. Laches Is Not A Valid Defense to Foreclosure. The doctrine of laches is not available as a defense so long as the statutory period allowed 5 ¹ 3560725 v. 5 of 9 FILED: KINGS COUNTY CLERK 06/07/2018 12:45 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/07/2018 for the commencement of foreclosure has not expired. Wesselman v. Engel Co., 309 N.Y. 27, 32, 127 N.E.2d 736 (1955). Without an acceleration, a separate cause of action accrues for each mortgage payment that is not paid, and the statute of limitations begins to run on the date each installment payment becomes due. See Goldman Sachs Mortgage Company v. Mares, 135 A.D.3d 1121, 23 N.Y.S.3d 444 (2d Dep't 2016); see also, Wells Fargo v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 (2d Dep't 2012) Here, it is undisputed that Plaintiff elected to accelerate the mortgage debt when it commenced foreclosure proceedings by filing the Summons and Complaint and Notice of Pendency on July 8, 2015. See Attorney Affirmation in Support of Application, Exhibit "C". Therefore, the statute of limitations does not expire until July 8, 2021. Accordingly, even assuming that Estate of Brodwith had not waived its foreclosure defenses by failing to interpose an Answer, it is clear that the doctrine of laches is inapplicable here. Moreover, Plaintiff's recovery already is limited in that it cannot recover any payments which are older than the immediately preceding six (6) years from the date the foreclosure was commenced. Id. ("[a]s a general matter, an action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding the commencement of the action; see also, CPLR § 213(4). In other words, by failing to commence foreclosure proceedings until July 8, 2015, the only party prejudiced was Plaintiff. Because laches is not a valid foreclosure defense, Plaintiff's Motion for an Order of Reference should be granted and Estate of Brodwith's cross-motion must be denied. B. Estate of Brodwith Has Not Provided Any Evidence That A Deposition of Plaintiff Will Adduce Relevant Evidence. Estate of Brodwith fails to proffer any reason to depose Plaintiff. Estate of Brodwith neither disputes the note, mortgage, or the default thereunder nor can it since it has not vacated 6 ¹ 3560725 v. I 6 of 9 FILED: KINGS COUNTY CLERK 06/07/2018 12:45 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/07/2018 its default in responding to the complaint. If Estate of Brodwith seeks to depose Plaintiff to dispute the amount owed to Plaintiff, then it will have every opportunity to do so at a hearing pursuant to RPAPL Section 1321. While the "court may deny a motion for summary judgment if 'it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may stated,' exist but cannot then be [i]t is incumbent upon the opposing party to provide an evidence." evidentiary basis to suggest that discovery might lead to relevant Dyer Trust 2012-1 v. Global World Realty, Inc., 140 A.D.3d 827, 828-829, 33 N.Y.S.3d 414 (2d Dep't 2016) (citing — Suero-Sosa v. 112 A.D.3d — 977 N.Y.S.2d 61 (2d Dep't see Cardona, 706, 707-708, 2013); Lauriello v. Gallotta, 59 A.D.3d 497, 498-499, 873 N.Y.S.2d 690 (2d Dep't 2009); Brewster v. Five Towns Health Care Realty Corp., 59 A.D.3d 483, 484, 873 N.Y.S.2d 199 (2d Dep't 2009). Here, Estate of Brodwith fails to identify what relevant facts or evidence it hopes to glean from a deposition. If the goal of the deposition is to limit the amount Plaintiff can recover on a judgment of foreclosure, then Estate of Brodwith will have a full and fair opportunity to do so at a hearing pursuant to RPAPL Section 1321. Lastly, Estate of Brodwith fails to set forth any facts or evidence supporting its outlandish assertion that the averments in the Affidavit are false. Estate of Brodwith's own cross- Notably, "20," motion contradicts itself. In paragraph Estate of Brodwith alleges that the Affidavit is a hoax" "24," "manifest and then in paragraph Estate of Brodwith relies on the Affidavit as support for its request for a deposition of Plaintiff. Notwithstanding this, there is absolutely no evidence to support Estate of Brodwith's request that the Court issue an Order referring the affiant to the New York State Department of Financial Services or to the Kings County District Attorney and the Court should not entertain this ludicrous request. 7 4 3560725 v. 1 7 of 9 FILED: KINGS COUNTY CLERK 06/07/2018 12:45 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/07/2018 Because laches is not a viable defense to foreclosure and because Estate of Brodwith fails to provide any justifiable basis to depose Plaintiff, Plaintiff's Motion for an Order of Reference should be granted and Estate of Brodwith's cross-motion must be denied. CONCLUSION Plaintiff has established its prima facie entitlement to foreclosure and Estate of Brodwith, who is in default in the instant matter, has failed to present any basis to deny Plaintiff's Motion for an Order of Reference. Any dispute as to the amount owed to Plaintiff will be resolved at a hearing pursuant to RPAPL Section 1321 and is not a basis to deny Plaintiff's Motion for an Order of Reference. WHEREFORE, it is respectfully requested that the Court grant Plaintiff's Motion for an Order of Reference and that Estate of Brodwith's cross-motion be in its entirety, together with such other and further relief as this Court deems just and proper. Dated: June 7, 2018 New York, New York /s/ Dustin P. Mansoor Dustin P. Mansoor, Esq. Stradley Ronon Stevens & Young, LLP 100 Park Avenue, Suite 2000 New York, New York 10017 Telephone: (212) 812-4135 Facsimile: (646) 282-7180 Attorneys for Plaintiff 8 "-' 3560725 v. i 8 of 9 FILED: KINGS COUNTY CLERK 06/07/2018 12:45 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 06/07/2018 dNsraurrudLlrprtsrl parrurrl srusrrstsuuadv 1 r rr\ ~errv'%& arursstaaI rial rrraz I &ural rrrarrtaa I I srusrrt~uad 'uormurrtssdg OYiF» NONOg ~q 'juno~ ~ suarrarguouott rtatpurrs A3 IGVEl$ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No. 508445/2015 THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS INDENTURE TRUSTEE ON BEHALF OF THE NOTEHOLDERS AND THE NOTE INSURER OF ABFS MORTGAGE LOAN TRUST 2000-4, Plaintiffs, -against- THERESA BRODWITH, INDIVIDUALLY