Preview
INDEX NO. 064350/2013
FILED: SUFFOLK COUNTY CLERK 0172172015 09:34 AM
NYSCEF DOC. NO. 19 RECEIVED NYSCEF 01/21/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
QNSJNO31
NATIONSTAR MORTGAGE LLC,
Plaintiff,
-vs- AFFIRMATION IN SUPPORT FOR
SUMMARY JUDGMENT AND
AQUELA AMINNULLAH A/K/A AQELA ORDER OF REFERENCE
AMINNULLAH; "JOHN DOE # 1-5" AND "JANE
DOE #1-5"said names being fictitious, it being the
intention of Plaintiff to designate any and all Index No. 064350/2013
occupants, tenants, persons or corporations, if any,
having or claiming an interest in or lien upon the
premises being foreclosed herein
Defendants.
STATE OF NEW JERSEY)
COUNTY OF MORRIS) ss.:
MICHAEL S. HANUSEK, ESQ., affirms under penalties of perjury the truth of the following:
1 Tam an attorney in the law firm of Fein, Such & Crane, LLP, attorneys of record for
the Plaintiff in this action and am duly admitted to practice law in New York State.
2 THAT this action is brought to foreclose a thirty year fixed rate purchase money
mortgage dated June 15, 2004, covering real property located at 15 GOOSEBERRY LANE,
ISLANDIA A/K/A 15 GOOSEBERRY LANE, RONKONKOMA, NY A/K/A ISLANDIA, NY
11749 executed by AQUELA AMINNULLAH A/K/A AQELA AMINNULLAH and
OBAIDULLAH AMINNULLAH (Deceased) to MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., AS NOMINEE FOR AMERICA'S WHOLESALE LENDER to secure the sum
of $392,000.00, which was recorded in the SUFFOLK County Clerk's Office on July 6, 2004, in
Liber 20787 of Mortgages, at Page 590, et seq. Said Mortgage was assigned by MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC. to BAC HOME LOANS SERVICING, LP
FKA COUNTRYWIDE HOME LOANS SERVICING LP by Assignment dated June 13, 2011 and
recorded in the SUFFOLK County Clerk's Office on October 5, 2011, in Liber 22122 of Mortgages,
at Page 540, et seq. BAC HOME LOANS SERVICING, LP merged with and into BANK OF
AMERICA, NATIONAL ASSOCIATION by virtue of Certificate of Merger attached to the
Complaint. Said Mortgage was further assigned by BANK OF AMERICA, N.A. to NATIONSTAR
MORTGAGE LLC by Assignment dated January 2, 2013 and recorded on March 16, 2013 in the
Office of the County Clerk in Liber 22316 of Mortgages at page 605, et seq.
3 THAT this action has proceeded as follows:
a) The Summons and Complaint were filed in the SUFFOLK County Clerk’s
Office on December 4, 2013, copies of which are attached hereto as Exhibit “A”;
b) The Notice of Pendency was filed in the SUFFOLK County Clerk’s Office
on December 4, 2013, a copy of which is attached hereto as Exhibit “B”;
°) Service of the Summons and Complaint was made upon all necessary
Defendants and the affidavits of service thereof were duly filed in the
SUFFOLK County Clerk’s Office, date stamped copies of which are attached hereto
as Exhibit “C”;
qd) On or about January 2, 2014, Defendant AQUELA AMINNULLAH, through
her attorney served a Verified Answer and Counterclaim to the Complaint and a
Notice of Appearance. Copies of which are attached hereto as Exhibit “D”;
e) On February 25, 2014 Plaintiff filed a Verified Reply to Counterclaims,
copy of which is attached hereto as Exhibit "E";
f) On June 7, 2013 Defendants were served with the Notice of Intent to
Foreclose, attached hereto as Exhibit "F";
8) On June 7, 2013 Defendants, were served with the 90 day Pre-Foreclosure
Notice, attached hereto as Exhibit "G" along with the USPS record of delivery of
same;
h) On October 5, 2011 and March 16, 2013 Assignments of Mortgage were
recorded in the SUFFOLK County Clerk's Office, copies of which are attached hereto
as Exhibit "H";
i) Attached hereto as Exhibit “I” is a copy of the original Note dated June 15,
2004; and
D Attached hereto as Exhibit “J” is a copy of the MERS Corporate Resolution.
4. Tuat said filed Notice of Pendency of this action, was in the form prescribed by
statute and containing, as your affirmant believes, correctly, all the particulars required by law to be
stated in such notice, was filed in the Office of the Clerk of the County of SUFFOLK, that being the
County in which the mortgaged premise is situated; and that since the filing of the said notice, the
verified complaint in this action has not been amended by making new parties to this action, or so
as to affect other property not described in the original complaint, or so as to extend the claims of
the Plaintiff as against the mortgaged premises.
5 THAT all of the said Defendants are of full age; that none of the Defendants are in the
armed services of the United States of America.
6 THAT none of the Defendants are of unsound mind and that none of the Defendants,
who have not appeared, are absentees.
7 THAT the time of the Defendants to appear, answer or otherwise move, with respect
to the complaint has expired and has not been extended by stipulation, order of the Court or
otherwise, and that none of the Defendants has appeared or answered the complaint, except for as
set forth above.
8 Tuat the attached affidavits of service show that the name of the occupant of the
subject property, as provided to the process server at time of service, is JANE DOE (NAME
REFUSED) and request is therefore made that this name be substituted in the caption of this action
in the place and stead of “JANE DOE #1" without prejudice to any of the proceedings heretofore
had herein.
9 THAT Defendants captioned as “JOHN DOE #1" through “JOHN DOE #5" AND
“JANE DOE #2" through “JANE DOE #5" were not served with copies of the summons and
complaint and are not necessary parties Defendant. Request is therefore made that said Defendants
be excised from the action and caption of the action without prejudice to any of the proceedings
heretofore had herein.
10. THAT counsel for the Plaintiff provided the process server with the Summons and
Complaint, printed on white paper, together with the Notice required by RPAPL 1303, printed on
a different colored paper than that of the summons and complaint as can be seen from the affidavit
of service attached hereto. The process server effected service upon the mortgagor(s) with the
complaint copy of the notification pursuant to RPAPL 1303. An exact photocopy of said Notice is
attached hereto, evidencing that the title of the Notice is in bold, 20-point font, the text of the Notice
is in bold 14-point font, it was on its own page and it was served with the Summons and Complaint.
11. THAT the mortgagor(s) was served with additional notice of summons in compliance
with CPLR 3215(g)(3).
SUMMARY JUDGMENT
12. THAT as the attached affidavit on behalf of Plaintiff demonstrates, the denials and
defenses raised in Defendant’s Answer are without merit and it is respectfully submitted that the
Answer should be stricken and dismissed. As the Complaint sets forth, and as attested to in
Plaintiff's affidavit of merit, Defendant AQUELA AMINNULLAH (“Defendant”) defaulted under
the terms of the Note and Mortgage for failure to pay the March 1, 2010 payment and all subsequent
payments accruing thereafter. Defendant has not and cannot show proof of sufficient tender to defeat
Plaintiffs right to have accelerated the debt and commenced the present action. Accordingly,
Defendant does not appear to have a meritorious defense to the foreclosure action and Summary
Judgment is warranted. General denials are insufficient to defeat a motion for summary
judgment. Stern v. Stern, 87 A.D.2d 887 (2™ Dept 1982); Pathmark Graphic v. J.M. Fields Inc. ,
53 A.D.2d 531 (1 Dept. 1976) Defenses that merely plead conclusions of law without
supporting facts are insufficient and fatally deficient. Becher v Feller, 884 NYS2d 83 (2" Dept
2009). Plaintiff has made out a prima facie entitlement to foreclosure, as it has submitted proof of
the Mortgage and Note and of Defendant’s default in payment. Citidress II v 207 Second Avenue
Realty Corp. 21 A.D.3d 774, 802 N.Y.S. 2d 393 (2005); Flagstar Bank v Bellafiore, 943 N.Y.S. 2d
551 (2™ Dept 2012): HSBC Bank USA NA v. Schwartz, 931 N.Y.S. 2d 528 (2° Dept 2011).
Plaintiff has established its entitlement to judgment as a matter of law. JPMorgan Chase Bank N.A.
yv Agnello, 878 N.Y.S. 2d 397 (2™ Dept 2009).
13. That Plaintiff has complied with all applicable provisions of the RPAPL Section 1304
and Banking Law, and specifically with Banking Law § 595-a and 6-1 and 6-m if applicable, in
securing the aforementioned indebtedness and at all times thereafter. In accordance with RPAPL
Section 1304, a 90 day notice was sent to the borrower at least 90 days ago but within the last 12
months. The 90 day notice was sent at least 90 days before the commencement of this foreclosure
action. Further, the notice under RPAPL Section 1304 was in 14-point type, contained the statutorily
dictated language and the addresses and phone numbers of at least five US Department of Housing
and Urban Development approved housing counseling agencies in the region where the borrower
resides and was mailed by registered or certified mail and first class mail to the last known address
of the borrower. Plaintiff has fully and completely complied with the RPAPL Section 1304. Further,
Plaintiffhas complied fully with RPAPL Section 1306 filing requirements in that the filing with the
superintendent was completed within three (3) business days of the mailing.
14. THAT Defendant raises as a FIRST AFFIRMATIVE DEFENSE, that the Complaint
herein fails to state a claim upon which relief may be granted. The defense is premised on the notion
that the Complaint contains “boilerplate” language; and that the Complaint failed to give information
regarding (inter alia) the terms of the subject Mortgage, the amount of monthly payments, and the
date of default. This defense is entirely without merit however. A review of the Complaint and the
exhibits annexed thereto illustrates that Defendant entered into a Mortgage agreement with Plaintiff,
and that Defendant defaulted on the monthly payment obligations thereunder. The foregoing is
sufficient to establish entitlement to a Judgment of Foreclosure as a matter of law. “The case law
makes clear that where a mortgagee produces the mortgage and unpaid note, together with evidence
of the mortgagor’s default, the mortgagee demonstrates its entitlement to a judgment of foreclosure
as a matter of law...Defendant’s first affirmative defense failure to state a cause of action is
boilerplate in nature and plainly lacking in merit.” La Salle Bank Nat’l. Assn. v Kosarovich, 31
A.D.3d 904, 905; 820 N.Y.S.2d 144 (34 Dep’t 2006) Internal citations omitted.
15. Here, Plaintiff produced the Mortgage and Note as exhibits to the Complaint. There
is no requirement that Plaintiff explain the terms of the Mortgage, expound on any settlement
attempts, or detail Defendant’s monthly payment obligations. Moreover, Defendant’s assertion that
Plaintiff did not indicate the date of default is specious in nature. Schedule “E” of the Complaint
does indicate the date of Defendant’s default as March 1, 2010. Defendant’s contention that Plaintiff
failed to annex mortgage documents to the Complaint, is also without any merit whatsoever. The
Note, Mortgage , Assignments, and Certificate of Merger are all annexed to the Complaint. Further,
as a matter of law, the defense of failure to state a claim must be raised by motion pursuant to CPLR
Sec. 3211 and cannot be interposed in an answer. See Bentivegna v Meenan Oil Co., 126 A.D.2d
506; 510 NYS2d 626 (2™ Dep’t 1987). For the reasons set forth herein, the first affirmative defense
is wholly without merit and should be stricken in its entirety.
16. THAT Defendant raises as a SECOND AFFIRMATIVE DEFENSE, that Plaintiff
lacks standing. Despite the foregoing, the defense acknowledged that the subject Note was assigned
to Plaintiff by assignment recorded on March 16, 2013, before the commencement of this action. The
defense then used the foregoing as a basis to assert that “Plaintiff lacks possession of the original
note...” but makes no reference whatsoever of a subsequent assignment of the Note. As a result, this
defense is wholly conclusory in nature and without merit. A defense that merely pleads conclusions
of law without supporting facts is insufficient and fatally deficient. See Becher v Feller, 64 A.D.3d
672; 884 NYS2d 83 (2™ Dept 2009). See also G.G.F. Dev. Corp. v. Andreadis, 251 A.D.2d 624; 676
N.Y.S.2d 488 (2™ Dep’t 1998) (holding that a vague assertion that the assignment of a mortgage
violated Judiciary Law Sec. 489 was insufficient to raise a triable issue of fact). Further, “one
opposing a motion for summary judgment must produce evidentiary proof in admissible form
sufficient to require a trial of material questions of fact...mere conclusions, expressions of hope or
unsubstantiated allegations or assertions are insufficient.” Zuckerman v. New York, 49 N. Y.2d 557,
562; 404 N.E.2d 718 (NY 1980). Here, Defendant acceded to the fact that Plaintiff held the Note
and the time the action was commenced. Defendant failed to assert that the Note was subsequently
assigned. Instead, Defendant surmises that Plaintiff no longer possesses the Note because of (inter
alia) “stray markings” on the loan documents.' Thus, Defendant’s contention that Plaintiff lacks
possession of the original Note, constitutes mere conjecture and an expression of hope.
17. In a mortgage foreclosure action, a plaintiff has standing where it is both 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 qa
Dept 2011). Further, as the Court noted in Flushing Preferred Funding Corp v Patricola Realty Corp,
36 Misc. 3d 1240(A); 964 N.Y.S.2d 58, **8 (Suffolk Co. Sup. Ct. 2012):
In contrast, the standing ofa plaintiff in a mortgage foreclosure action
is measured by markedly different elements, namely, its ownership,
holder status or possession of the note and mortgage at the time
of the commencement of the action (see US Bank of NY v
Silverberg, 86 AD3d 274, 279, 926 NYS2d 532 [2d Dept 2011];
Bank, NA v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept
2009]; Wells Fargo Bank, NA v Marchione, 69 AD3d 204, 887
NYS2d 615 [2d Dept 2009]). In addition, mortgage loan servicers
and other agents of the owner, holder or possesor of the note and
mortgage at the time of commencement possess standing to
prosecute claims for foreclosure and sale (see RPAPL $1304[1]
[authorizing lenders, assignees or mortgage loan servicers to
commence mortgage foreclosure actions];RPAPL §1302[1]
[requiring plaintiffs in some foreclosure actions to allege that it is
[**9] the owner and holder of the note and mortgage or has been
delegated the authority to prosecute action by such); see also Wells
Fargo Bank, NA v Edwards, 95 AD3d 692, 945 NYS2d 44 [Ist Dept
2012] [action properly maintained in plaintiff's capacity as trustee
under a pooling and servicing agreement that predated the
commencement of the action]; CWCapital Asset Mgt. v Charney--
FPG 114 41st St, LLC., 84 AD3d 506, 923 NYS2d 453 [Ist Dept
2011] [action properly maintained in plaintiff's capacity as servicing
agent]; Fairbanks Capital Corp. v Nagel, 289 AD2d 99, 735 NYS2d
13 [Ist Dept 2001] [delegation of mortgage to service agent by
mortgagee was sufficient to give service agent standing to sue};
Deutsche Bank Natl. Trust Co. v Pietranico, 33 Misc 3d 528, 928
NYS2d 818 [Sup.Ct., Suffolk County, 2011] {agent and nominee of
original lender had standing to prosecute action]; see also US Bank,
NA v Flynn, 27 Misc 3d 802, 806, 897 NYS2d 855 [Sup. Ct., Suffolk
County 2010]). Since the ownership, holder status or possessory
interest of the plaintiff or its duly delegated agent bears solely upon
the issue of standing, and not upon the sufficiency of the claim, the
‘It is also of note, that this affirmative
defense makes the
incongruous assertion that the annexed to the
loan documents
Complaint are blurry, while the first affirmative defense asserts
that there are no loan documents annexed to the Complaint at all.
pleading and proving of such interest [**10] is not an element of
the plaintiff's claim for foreclosure and sale (see Wells Fargo Bank
Minn, NA v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept
2008]; cf, U.S. Bank Nat. Assn. v Dellarmo, 94 AD3d 746, 942
NYS2d 122 [2d Dept 2012]). (emphasis added)
18. Plaintiff was, at the time this action was commenced, the holder of the Note,
having possessed the original Note endorsed in blank. A copy is attached to the Complaint.
Plaintiff further refers the Court to paragraphs 2 and 4 and Exhibit A to the 12/9/14 Affidavit
of David Foli. This fact alone is sufficient to afford Plaintiff standing. Vanderbilt Mortgage and
Finance v Davis, 2013 N.Y. Misc. LEXIS 4027 (Suffolk County 2013); HSBC Bank USA National
Association v. Carpinelli, 2013 N.Y. Misc. LEXIS 4745 (Suffolk County 2013). As the Court in
Silverberg, Supra, at page **537 noted: As a general matter, once a promissory note is tendered to
and accepted by an assignee, the mortgage passes as an incident to the note. See, Mortgag
Electronic Registration Sys, Inc v Coakley, 41 A.D. 3 674, 838 N.Y.S. 2d 622; Smith v Wagner,
106 Misc 170, 178; 174 N.Y.S. 205 (‘assignment of the debt carries with it the security therefor,
even though such security be not formally transferred in writing’).”
19. Furthermore, it has long been settled that a note holder has standing to maintain a
foreclosure action so long as the mortgage and note have been delivered to the foreclosing party, and
a mortgage can be transferred by delivery without a written assignment. Ebling Brewing Co. v
Gennaro, 189 A.D. 782; 179 N.Y.S 384 (2™ Dep’t 1919), Fryer v Rockefeller, 63 N.Y. 268; 1875
N.Y. LEXIS 40 (NY 1875). The Uniform Commercial Code also provides that, “[t]he holder of an
instrument whether or not he is the owner may ... enforce payment in his own name.” U.C.C. §3-
301. A “holder” is defined as “a person in possession of a document of title or an instrument
...issued or indorsed to him or to his order ...” U.C.C. § 1-201(20). Therefore, if possession of an
instrument is delivered by voluntary transfer to an entity or person with the intention of also
transferring the rights to enforce that instrument, the transferee is entitled to enforce the instrament
as its holder. The Court in Deutsche Bank National Trust Company v. Musco, 2012 NY Slip Op
32377(U), **7; 2012 N.Y.Misc LEXIS 4450 (Richmond Co. 2012) when faced with an attack on
the validity of a MERS assignment of mortgage by the defendant borrower found as follows:
It is well settled that an assignment of mortgage does not have to be in
writing and can be effected, as here, through its physical delivery to
Deutsche Bank (see, LaSalle Bank N.A. v. Ahearn, supra). In the case at
bar, absent any authority to the contrary, the subsequent written
assignment of mortgage dated December 4, 2009 by a MERS
representative pursuant to a Corporate Resolution dated March 19, 2009
may have been redundant, but it in no way invalidated the actual physical
delivery of the original note and mortgage to the plaintiff trustee which
occurred previously. It is also worthy to note that defendant's mortgage
specifically provides MERS with the requisite authority to exercise any
of lender's rights granted by said mortgage, or take any action required by
the lender with reference thereto (cf, Bank of N.Y. v. Silverberg, supra).
Thus, the proposed defenses and counterclaims challenging, e.g., the
validity of the written assignment of mortgage by MERS, are devoid of
merit.
This Court should adopt the same sensible reasoning as the court in Musco, Supra. The existence
of a MERS Assignment in the assignment chain is no legal impediment to Plaintiff's standing to
foreclose in this case. Deutsche Bank National Trust Company as Trustee v. Pietranico, 928
N.Y.S.2d 818 (Suffolk County 2011). This defense is without merit.
20. Tuat Defendant raises as a THIRD AFFIRMATIVE DEFENSE, that Plaintiff again
lacks standing. The defense is premised on the notion that (inter alia) the appurtenant Assignments
were not “properly” noticed; the Assignments were improperly recorded; the Assignments failed to
explain the relationship between the assignor and assignee; and the Assignments failed to explain
the reason and amount paid for the assignments. This defense is again without merit however.
Initially, Defendant failed to assert what rendered the recording of the Assignments improper. As
aresult, the defense is wholly conclusory in nature (See Becher v Feller, 64 A.D.3d 672, G.G.F. Dev.
Corp. v. Andreadis, 251 A.D.2d 624, Supra). Moreover, recording the Assignment relates solely to
Plaintiff's priority, and not Plaintiffs standing to commence the action. See HSBC Bank USA Natl.
Assn. v Delacadena, 25 Misc. 3d 1216(A); 901 N.Y.S.2d 907 (Suffolk Co. Sup. Ct. 2009).
In the view of this Court...[a] good assignment of a mortgage is
made by delivery only. It logically follows, then, that mere
delivery of the instruments of indebtedness is sufficient to confer
standing and the recording of a written assignment of mortgage
merely serves to put the world on record notice of the transfer of
rights...It is beyond dispute that Plaintiff has shown its interest
in the indebtedness herein sufficient to confer standing as a
matter of law, thereby vitiating any claims of Defendants to the
contrary.
21, Internal citations omitted. In addition, the assertion that Plaintiff did not properly
notice the assignments of mortgage is also without merit. Defendant did not assert what constitutes
proper notice; did not assert how Plaintiff fell short of this unknown standard; and failed to assert
ata minimum, who was not properly noticed. This defense is again conclusory in nature (See Becher
Vv Feller, 64 A.D.3d 672, G.G.F. Dev. Corp. v. Andreadis, 251 A.D.2d 624, Supra). In any event,
Paragraph “20" of the Mortgage (annexed to the Complaint) states in pertinent part: “The Note, or
an interest in the Note, together with this Security Instrument, may be sold one or more times. J
might not receive any prior notice of these sales.” Emphasis added. This defense is without merit.
22. There is also no requirement whatsoever that an assignment explain any “relationship”
between the assignor and assignee; explain the reason for the assignment; specify the amount paid
on the assignment; detail the effect of the assignment on any servicers; or detail the division of
responsibilities between owners and servicers. Further, there is no requirement at law that an
assignment must be notarized in the same state where either the assignor or assignee has their main
office. These assertions are premised on no cognizable legal theories, and amount to mere
conclusory allegations.
23. In addition, there is no requirement at law that the endorsement of the Note is dated,
or that the endorsement takes place at the same time that the Note is assigned. To the contrary, the
Note need only be endorsed to blank in order to be assigned. UCC Section 3-204(2) states in
pertinent part: “An indorsement in blank specifies no particular indorsee and may consist of a mere
signature. An instrument payable to order and indorsed in blank becomes payable to bearer and may
be negotiated by delivery alone until specially indorsed.” Emphasis added. See also Mortgage
Elec. Registration Sys., Inc. v. Coakley, 41 A.D.3d 674; 838 N.Y.S.2d 622 (2™ Dep’t 2007) (holding
that MERS was the lawful holder of the subject note endorsed in blank). This defense should be
stricken in its entirety.
24. THAT Defendant raises as a FOURTH AFFIRMATIVE DEFENSE, that Plaintiff
again lacks standing. This defense is premised on the notion that the initial MERS assignment was
defective. The defense is again without merit however. See US Bank, N.A. v Flynn, 27 Misc. 3d 802;
897N. Y.S.2d 855 (Suffolk Co. Sup. Ct. 2010) (holding that as MERS was identified in the mortgage
as the nominee for the lender, and as MERS was granted broad authority to act with respect to the
Mortgage, the MERS assignment was valid). The Mortgage (annexed to the Complaint) names
MERS as mortgagee of record and nominee for the lender, its successors and assigns. Further, the
MERS Corporate Resolution annexed hereto as Exhibit “J” confers upon MERS broad authority to
act with respect to the Mortgage. Thus, the aforesaid Assignment from MERS is indeed valid as a
matter of law. This defense is without merit and should be stricken.
25. THAT Defendant raises as a FIFTH AFFIRMATIVE DEFENSE, that Plaintiff railed
to reasonably attempt a modification of the subject Mortgage. Plaintiff avers that the alleged does
not constitute a defense to this action. Regardless, Plaintiff appeared at the Foreclosure Settlement
Part, in good faith, for conferences conducted under the supervision of the Court on June 6, 2014.
The matter was referred out of the Settlement Conference Part at that time, allowing Plaintiff to
proceed with this action. In addition, a mortgagor does not have the right to construe a mortgagee’s
willingness to negotiate as some sort of forbearance that precludes foreclosure. See Bercy Investors
Inc v Sun, 239 A.D.2d 161; 657 N.Y.S 2d 47 (Ist Dept 1997).
26. Moreover, there is no express or implied covenant in the Note or Mortgage that
provides that in the event of a default thereunder, Defendant is entitled to a modification thereof.
Indeed, when a mortgagor defaults on loan payments, even if only for a day, a mortgagee may
accelerate the loan, require that the balance be tendered or commence foreclosure proceedings and
equity will not intervene. See First Federal Savings Bank v Midura, 264 A.D.2d 407; 694 N.Y.S.2d
121 (1999). Once a mortgagor’s default has been declared and the mortgage loan accelerated, the
mortgagee is not required to accept a tender of less than full repayment as demanded. Id., EMC
Mortgage Corp v Stewart, 2 A.D.3d 772; 769 N.Y.S.2d 408 (2™ Dep’t 2003). The Court, as a
matter of law, cannot compel Plaintiff to modify the Defendants’ loan. See Emigrant Mortgag
Company v Fisher, 90 A.D.3d 823; 935 N.Y.S.2d 313 (2™ Dept 2011). It is axiomatic, even today,
that stability of contract obligations must not be undermined by judicial sympathy. Id.; Graf v Hop
Bldg. Corp. 254 NY 1; 171 N.E. 884 (N.Y. 1930). A determination not to modify a mortgage
loan by a foreclosing bank that is under no legal obligation to modify such a loan is not
unconscionable conduct and does not constitute bad faith. See JP Morgan Chase Bank N.A. v.
Ilardo, 36 Misc. 3d 359; 940 N.Y.S. 2d 829 (Supreme Court Suffolk County 2012). The defense is
without merit and should be stricken.
27. THAT Defendant raises as a SIXTH AFFIRMATIVE DEFENSE, that Plaintiff
“promised” to modify the Defendant’s loan. Initially, Defendant proffered no information in support
of this purported promise rendering the assertion merely conclusory in nature. Further, as previously
stated, the parties appeared in the Foreclosure Settlement Part and the Court “released” the matter
therefrom. Thus, the Court deemed that Plaintiff satisfied its obligation to attempt settlement of the
matter, and did not engage in bad faith as Defendant asserts. See, Deutsche Bank Natl. Trust Co. v
Musco, 2012 NY Slip Op 32377(U) **5; 2012 N.Y. Misc. LEXIS 4450 (Richmond Co. Sup. Ct.
2012) (“Notwithstanding defendant's conclusory claim of "bad faith" during settlement negotiations,
a hearing on that issue apparently was never ordered by the justice presiding in the Foreclosure
Conference Part”). See also JP Morgan Chase BankN.A. v. Ilardo, 36 Misc. 3d 359, Supra. Finally,
to the extent that Defendant is attempting to assert an estoppel defense, such a defense is also
without merit. “When a mortgagor is attempting to assert estoppel against a mortgagee who has
instituted a foreclosure the mortgagor must produce evidentiary proof in admissible form ...
sufficient to require a trial [of that defense] .. mere conclusions, expressions of hope,
unsubstantiated allegations or assertions are insufficient.” Prudential Home Mortg. Co.. Inc. v.
Ci ‘ermele, 226 A.D.2d 357; 640 N.Y.S.2d 254 (2nd Dept.,1996). Internal citations omitted. All
Defendant offers are conclusions and/or unsubstantiated allegations. This defense is without merit
and should be stricken.
28. THAT Defendant raises as a SEVENTH AFFIRMATIVE DEFENSE, that the subject
loan was “predatory”, and Plaintiff should not have granted the loan to defendants based upon their
income. This defense is again without merit however. A representation by a lender (assuming there
was such a representation in this case) that a borrower can afford to repay a prospective loan is an
expression of opinion of present or future expectations, which is not actionable and cannot form the
basis for an affirmative defense. See Goldman v Strough Real Estate Inc, 2 A.D.3d 677; 770 NYS2d
94 (2™ Dept 2003); Crossland Savings FSB v SOI Dev Corp., 166 A.D.2d 495; 560 NYS2d 782 (2
Dept 1990); Citibank, N.A. v. NIB Assocs., LLC, 2011 NY Slip Op 31064(U); 2011 N.Y. Misc.
LEXIS 1931 (Queens Co. Sup. Ct. 2011). Further, “evidence that Plaintiffs predecessor’s decision
to lend money to the Defendant was unwise is insufficient by itself to raise a triable issue of fact...”
See Argent Mortgage Company LLC v Mentesana, 79 A.D. 3d 1079, 1081; 915 N.Y.S.2d 591 (2™
Dept 2010). See also. JP Morgan Chase Bank v Leschins, 2011 NY Slip Op 32861(U) **5, 2011
N.Y. Misc. LEXIS 5176 (NY Sup. Ct. 2011). “Defendant likewise fails to demonstrate a meritorious
defense to this foreclosure action. Her bare and conclusory allegations as to ‘predatory lending
practices’ ...are insufficient to establish a meritorious defense.” See also Deutsche Bank Natl. Trust
Co. v. McLean-Chance, 2013 NY Slip Op 32606(U); 2013 N.Y. Misc. LEXIS 4826 (Queens Co.
Sup. Ct. 2013). It is also of note that this defense contradicts the Fifth Affirmative Defense, where
Defendant cited to her husband’s passing and a loss of income as the basis for her default. This
Defense is without merit and should be stricken.
29. THAT Defendant raises as an EIGHTH AFFIRMATIVE DEFENSE, that the subject
loan is fraudulent. The defense is premised on the notion that brokers “may have given incorrect
information...” (emphasis added) and that “/uJpon information and belief, the brokers...added or
changed the loan application of the Defendant without the Defendant’s knowledge.” Emphasis
added. This defense is again without merit. Initially, Defendant proffered no support for her bald
allegations. Moreover, Defendant failed to allege that Plaintiff actually engaged in any fraudulent
conduct. Instead, Defendant stated what Plaintiff “may have” done, and qualified her assertions as
being made “upon information and belief’. In any event, a mortgage may not be set aside solely
because the underlying transaction is tainted by a fraudulent representation. Jo Ann Homes at
Bellmore Inc. v Dworetz, 25 N.Y.2d 112, 302 N.Y.S 2d 799 (1969). There is no indication
whatsoever in the record that the Plaintiff participated in any of the alleged fraudulent and improper
and/or illegal conduct on the part of the loan originator or broker, or anyone. As a matter of law, one
who signs a document is conclusively bound by its terms. Pimpinello v. Swift & Co., 239 NY 159
(1930); Columbus Trust Co v Campolo, 487 N.Y.S.2d 105 (1985). Ignorance through negligence
or inexcusable trustfulness does not relieve a party from a contractual obligation. Ciaramella v State
Farm Ins. Company, 709 N.Y.S. 2d 296 (2000). The legal relationship between a borrower and a
bank is a contractual one of debtor and creditor and does not create a fiduciary relationship between
the bank and its borrower. Std Fed Bank v Healy, 777 NYS2d 499 (2™ Dept 2004). Indeed, Plaintiff
owed no duty to the Defendant to prevent either its agents (assuming there are any involved
here, which there are none) or anyone else from inducing Defendant to enter into this or any
other mortgage transaction. American Home Mortgage Servicing Inc v McGhee, 2012 N.Y. Misc.
LEXIS 5736 (Suffolk County 2012); see also, U.S. Bank National Association v Fields, 2012 N.Y.
Misc. LEXIS 4025 (Suffolk County 2012). The Plaintiff in this case cannot as a matter of law be
required to answer in damages for alleged misrepresentations committed by the original lender
in connection with the making of the original mortgage loan. Vanderbilt Mortgage and Financ
In c_v Davis, 2013 N.Y. Misc. LEXIS 4027 (Suffolk County 2013). Finally, Defendant does not
allege any fraud with the slightest specificity, which alone is fatal to this defense. See CPLR Sec
3016(b). See also Cohen v. Colistra, 233 A.D.2d 542, 542; 649 N.Y.S.2d 540 (3% Dep’t 1996) “[I]t
is well settled that... a party must establish that a material misrepresentation, known to be false, has
been made with the intention of inducing its reliance on the misstatement, which caused it to
reasonably rely on the misrepresentation, as a result of which it sustained damages.” Internal
citations omitted. Here, Defendant failed to assert the necessary elements to establish a fraud
defense. This defense should be stricken in its entirety.
30. THAT Defendant raises as a NINTH AFFIRMATIVE DEFENSE, that Plaintiff
violated TILA and RESPA by failing to provide certain disclosures to the Defendant. However, the
claim of a TILA violation is not an affirmative defense to this foreclosure as a matter of law.
LaSalle Bank Nat. Assn v Kosarovich, 31 AD 3d 904; 820 N.Y.S.2d 144 (3 Dept 2006).
Moreover, Defendant fails to provide any specific facts illustrating the alleged lack of compliance
with this statute and fails to identify which, if any, provisions of the statute have been violated. TILA
requires “meaningful” disclosure, not “perfect” disclosure, and TILA’s requirements are to be
“reasonably construed and equitably applied”. Kahraman v Countrywide Home Loans Inc., 886 F.
Supp. 2d 114; 2012 U.S.Dist. LEXIS 111712 (E.D. N.Y. 2012). Moreover, Defendant’s TILA
claims, if any, for damages are time barred as a matter of law. TILA provides that all claims for
statutory damages must be brought within one (1) year from the date of the occurrence of the
violation. 15 U.S.C.A. Sec 1640(e). This is a purchase money mortgage, meaning that the
extension of the right to rescind to three years in the event of an incorrect material disclosure--which
would have expired under TILA as well (See, 15 U.S.C.A. Sec 1635(f))-- does not even apply as a
matter of law. Finally, even assuming that Defendant has a right to rescind under TILA (she does
not) and the exercise of that right was timely (it’s not, even assuming this right was even exercised)
Defendant offers no tender of the necessary amount due Plaintiff to obtain rescission. Kahraman v
Countrywide Home Loans Inc., 2012 U.S.Dist. LEXIS 111712 (E.D. N.Y. 2012). Defendant has
no TILA defense. Period.
31. Similarly, Defendant failed to provide any specific facts illustrating the alleged lack
of compliance with RESPA and failed to identify which, if any, provisions of the statute have been
violated. Moreover, a disclosure violation under RESPA does not constitute a valid defense to
a mortgage foreclosure action as a matter of law. See Deutsche Bank Natl. Trust Co. v.
Campbell, 26 Misc. 3d 1206(A); 906 NYS 2d 779 (Kings Co Sup. Ct. 2009), Fremont Inv &
Loan v Laroe, 21 Mise. 3d 1124(A); 873 NYS2d 51 (Queens Co. Sup. Ct. 2008). Defendant’s
RESPA claims are similarly time barred.
Defendant went on to assert that Plaintiff “may have” violated the HDMA, FHA, and the
ECOA, but proffered no support for this conclusory, unsubstantiated belief. Finally, Defendant’s
claim that she was told it was unnecessary to bring an attorney to the closing is specious, baseless,
and conclusory in nature. This defense is without merit and should be stricken in its entirety.
32. THAT Defendant raises as a TENTH AFFIRMATIVE DEFENSE, that service of
process was defective. The defense is premised on the notion that Defendant was not personally
served, “or otherwise served per the requirements of the NYCPLR...” This defense is again without
merit however. Initially, the defense does not assert that Defendant was never served. Instead, the
defense claimed a defect in substitute service. However, the defense failed to assert what that
purported defect was. Instead, Defendant merely made the conclusory assertion that she was not
served per the CP:LR’s requirements. Such an assertion is insufficient to overcome the Affidavits
of Service. The Affidavits annexed hereto as Exhibit “C” indicate that Defendant was served on
December 12, 2013 by substitute service on her co-tenant “Jane Doe” (name refused) at the premises
sought to be foreclosed, and that a copy of the Summons and Complaint was mailed to Defendant
at the premises on December 23, 2013 as proscribed by CPLR § 308(2). Affidavits of service
constitute prima facie evidence of proper service and a conclusory denial of service is insufficient
to raise any material issue of fact. See Simmons First National Bank v Mandracchia, 248 A.D.2d
375; 669 N.Y.S.2d 646 (2 Dept 1998); American Business Credit, Inc. v. Sanabria 19 A.D.3d 624;
799 N.Y.S.2d 77 (2™ Dept.2005). Moreover, Defendant failed to move for dismissal within 60 days
of serving the Answer pursuant to CPLR Rule 3211(e). Thus, Defendant is barred from raising such
a defense here. This Defense is without merit and should be stricken.
33. THAT Defendant raises as an ELEVENTH AFFIRMATIVE DEFENSE, “wrongful
foreclosure.” In support of this notion, Defendant asserted that Plaintiff did not accept partial
payment of the arrears. Nonetheless, Defendant again failed to proffer any support for this bald
allegation. Moreover, Defendant failed to assert how or why Plaintiff's “failure” to accept partial
payment constitutes a viable defense to foreclosure. To the contrary, the aforesaid is not a viable
defense in a foreclosure proceeding. See United Cos. Lending Corp. v. Hingos, 283 A.D.2d 764,
765; 724 N.Y.S.2d 134 (3" Dep’t 2001).
It is well settled that a mortgagee is not required to accept an insufficient
tender of payment of arrears. Stated another way, a valid tender requires an
actual proffer of all mortgage arrears, which generally encompasses everything
to which the mortgagee is entitled, including any interest or late charges.
Additionally, once a default has been declared and the debt has been
accelerated, the mortgagee is not required to accept anything less than full
repayment of the debt.
Internal citations omitted. Thus, this defense is again conclusory in nature and without merit. This
defense should be stricken.
34. THAT Defendant raises as a TWELFTH AFFIRMATIVE DEFENSE, that Plaintiff
commenced the instant action while Defendant was “actively seeking” a modification. This defense
is again conclusory in nature, as Defendant failed to clarify what constitutes “actively seeking” a
modification. Moreover, the defense is materially infirmed for the reasons previously set forth in
Paragraphs “25" to “26" herein. This defense should be stricken.
35. THAT Defendant raises asa THIRTEENTH AFFIRMATIVE DEFENSE, that Plaintiff
failed to give proper 90 days notice under RPAPL 1304. However, a 90 day notice was sent to
Defendant on June 7, 2013 by both certified and regular mail. A copy of the notice is annexed hereto
as Exhibit “E” with the USPS record of delivery. Plaintiff further refers the Court to paragraph 7 and
Exhibit E to the 12/9/14 Affidavit of David Foli. A mere simple denial by a mortgagor of receipt of
such a notice does not give rise to a valid defense to a foreclosure. See Sansone v Cavallaro, 284
A.D.2d 817; 727 N.Y.S.2d 516 (3 Dept 2001). The law presumes that a letter properly addressed,
stamped and mailed has been duly delivered to the addressee (and) there is a presumption of receipt
which flows from fact of mailing. SeeDeFeo v Merchant, 115 Misc. 2d 286, 288 (Westchester 1982);
Accord Trusts and Guarantee Co v Barnhardt, 270 NY 350, 352 (1936). See also RPAPL Sec.
1304(2) (notice deemed given when it is mailed by the mortgagee, not when it is received by the
mortgagor). Finally, this defense is in direct contradiction with the tenth affirmative defense, where
it was asserted that service of process was improper (Paragraphs “64" through “67" of the Answer).
Here, Defendant now admits to service of the summons and complaint. “The first official indication
that the Defendant had that the Plaintiff would foreclose was that the Defendant was served with a
Summons and Complaint.” Emphasis added (83 of the Answer). The aforesaid further evidences
the specious nature of these affirmative defenses. This defense should be stricken in its entirety.
36. THAT Defendant raises as a FOURTEENTH AFFIRMATIVE DEFENSE, that as
Plaintiff has purportedly engaged in “robo-signing” in the past, this action “needs to be dismissed”.
Nonetheless, Defendant has proffered no support for the notion that Plaintiff ever engaged in robo-
signing, or that any of the appurtenant documents were robo-signed here. Thus, Defendant’s
assertions again constitute mere expressions of hope, and are thereby without merit (See Zuckerman
v. New York, 49 N.Y.2d 557, Supra). This defense should be stricken.
37. THAT Defendant raises as a FIFTEENTH AFFIRMATIVE DEFENSE, that the
subject loan was infirm by accounting errors. Nonetheless, Defendant failed to specify the nature of
these purported errors, and failed to proffer any support for the purportedly accurate amount owed.
Thus, the defense is again merely conclusory in nature and without merit. See General Electric
Capital Corporation v Ocean Marine Inc., et al., 2011 NY Slip Op 33154(U); 2011 N.Y. Misc.
LEXIS 5809 (Nassau Co. Sup. Ct. 2011) (holding that the affirmative defense of payment was
insufficient to survive Summary Judgment in a foreclosure proceeding, as answering defendants
failed to provide support for the defense). It is also of note, that Plaintiff admitted to falling into
arrears. Thus, the gravamen of the defense is a dispute as to the amount owed. However, the
existence of such a dispute does not preclude the issuance of a summary judgment directing the sale
of the mortgaged property. See Long Island Savings Bank of Centereach FSB v Denkensohn, 222
A.D.2d 659; 635 N.Y.S.2d 683 (2"' Dept 1995), Crest/Good Manufacturing Co. Inc v Baumann, 160
A.D.2d 831; 554.N.Y.S.2d 264 (2 Dept 1990). Any dispute as to the exact amount owed plaintiff
pursuant to the Mortgage and Note, may be resolved after a reference pursuant to RPAPL 1321. This
Defense is thereby without merit, and should be stricken.
38. THAT Defendant raises as a SIXTEENTH AFFIRMATIVE DEFENSE, that Plaintiff
violated the FDCPA. This defense is again without merit however. Purported violations of the
FDCPA do not give rise to a foreclosure defense. See Deutsche Bank Nat’] Trust Co. v Gillio, 22
Misc.3d 1131(A); 881 N.Y.S.2d 362 (Suffolk Co. Sup. Ct. 2009). Moreover, although the defense
asserts that a “detailed breakdown” was requested, Defendant failed to proffer proof of sucha written
request pursuant to 15 U.S.C §1692g. Based upon the foregoing, the defense is again without merit
and should be stricken. Further, Plaintiff's standing has no bearing whatsoever on the FDCPA, and
Defendant has proffered no support for such a notion. Moreover, Defendant’s standing defense was
already addressed and refuted in Paragraphs “16" to “19" herein. Defendant’s assertion that Plaintiff
“wrongfully report[ed] negative information...” is also conclusory in nature and without merit. This
defense should be stricken.
39, THAT Defendant raises as a SEVENTEENTH AFFIRMATIVE DEFENSE, that
Defendant is entitled to a conference in the Foreclosure Settlement Part. As previously stated in
Paragraph “25" herein however, the parties did appear for conferences in the Foreclosure Settlement
Part. This defense is moot, without merit, and should be stricken.
40. TuaT Defendant raises as a FIRST COUNTERCLAIM, that Plaintiff prevented
Defendant from submitting additional mortgage payments once Defendant fell into arrears. This
counterclaim is without merit however. Initially, the claim again admits that Defendant defaulted on
the subject loan. Moreover, the claim contradicts Defendant’s earlier assertion that Plaintiff rejected
partial payment. Instead, Defendant now incongruously asserted that Plaintiff rejected additional
payments. Further, Defendant failed to proffer any support for these bald allegations. In any event,
as previously stated herein, such a defense is without merit as a matter of law. See United Cos.
Lending Corp. v. Hingos, 283 A.D.2d 764, Supra. Finally, Defendant failed to assert cognizable
damages as a result of the purported rejection of payments. The only purported damage asserted by
Defendant is the loss of the subject home to foreclosure. However, as Defendant has not yet “lost”
the subject home, this has not yet ripened into a cognizable damage. This counterclaim should be
stricken.
41. THAT Defendant raises as a SECOND COUNTERCLAIM, that Plaintiff failed to
grant a modification to Defendant, which damaged defendant’s credit and could potentially cost
Defendant her home. This counterclaim is again without merit however, as Defendant proffered no
support for the notion that his credit was adversely impacted by the instant action. Further, such a
claim cannot be premised on Plaintiff’s “failure” to modify the loan for the reasons stated at length
herein. Defendant also failed to proffer any details regarding “Plaintiff’s false implied promise”,
rendering the assertion again conclusory in nature. Finally as previously stated, as Defendant has
not yet “lost” the subject home, Defendant cannot assert damages in relation thereto. This
counterclaim should be stricken.
42. THAT Defendant raises as a THIRD COUNTERCLAIM, that Defendant was
damaged because Plaintiff commenced this action during settlement negotiat
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INDEX NO. 064350/2013 FILED: SUFFOLK COUNTY CLERK 0172172015 09:34 AM NYSCEF DOC. NO. 19 RECEIVED NYSCEF 01/21/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK QNSJNO31 NATIONSTAR MORTGAGE LLC, Plaintiff, -vs- AFFIRMATION IN SUPPORT FOR SUMMARY JUDGMENT AND AQUELA AMINNULLAH A/K/A AQELA ORDER OF REFERENCE AMINNULLAH; "JOHN DOE # 1-5" AND "JANE DOE #1-5"said names being fictitious, it being the intention of Plaintiff to designate any and all Index No. 064350/2013 occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein Defendants. STATE OF NEW JERSEY) COUNTY OF MORRIS) ss.: MICHAEL S. HANUSEK, ESQ., affirms under penalties of perjury the truth of the following: 1 Tam an attorney in the law firm of Fein, Such & Crane, LLP, attorneys of record for the Plaintiff in this action and am duly admitted to practice law in New York State. 2 THAT this action is brought to foreclose a thirty year fixed rate purchase money mortgage dated June 15, 2004, covering real property located at 15 GOOSEBERRY LANE, ISLANDIA A/K/A 15 GOOSEBERRY LANE, RONKONKOMA, NY A/K/A ISLANDIA, NY 11749 executed by AQUELA AMINNULLAH A/K/A AQELA AMINNULLAH and OBAIDULLAH AMINNULLAH (Deceased) to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR AMERICA'S WHOLESALE LENDER to secure the sum of $392,000.00, which was recorded in the SUFFOLK County Clerk's Office on July 6, 2004, in Liber 20787 of Mortgages, at Page 590, et seq. Said Mortgage was assigned by MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. to BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING LP by Assignment dated June 13, 2011 and recorded in the SUFFOLK County Clerk's Office on October 5, 2011, in Liber 22122 of Mortgages, at Page 540, et seq. BAC HOME LOANS SERVICING, LP merged with and into BANK OF AMERICA, NATIONAL ASSOCIATION by virtue of Certificate of Merger attached to the Complaint. Said Mortgage was further assigned by BANK OF AMERICA, N.A. to NATIONSTAR MORTGAGE LLC by Assignment dated January 2, 2013 and recorded on March 16, 2013 in the Office of the County Clerk in Liber 22316 of Mortgages at page 605, et seq. 3 THAT this action has proceeded as follows: a) The Summons and Complaint were filed in the SUFFOLK County Clerk’s Office on December 4, 2013, copies of which are attached hereto as Exhibit “A”; b) The Notice of Pendency was filed in the SUFFOLK County Clerk’s Office on December 4, 2013, a copy of which is attached hereto as Exhibit “B”; °) Service of the Summons and Complaint was made upon all necessary Defendants and the affidavits of service thereof were duly filed in the SUFFOLK County Clerk’s Office, date stamped copies of which are attached hereto as Exhibit “C”; qd) On or about January 2, 2014, Defendant AQUELA AMINNULLAH, through her attorney served a Verified Answer and Counterclaim to the Complaint and a Notice of Appearance. Copies of which are attached hereto as Exhibit “D”; e) On February 25, 2014 Plaintiff filed a Verified Reply to Counterclaims, copy of which is attached hereto as Exhibit "E"; f) On June 7, 2013 Defendants were served with the Notice of Intent to Foreclose, attached hereto as Exhibit "F"; 8) On June 7, 2013 Defendants, were served with the 90 day Pre-Foreclosure Notice, attached hereto as Exhibit "G" along with the USPS record of delivery of same; h) On October 5, 2011 and March 16, 2013 Assignments of Mortgage were recorded in the SUFFOLK County Clerk's Office, copies of which are attached hereto as Exhibit "H"; i) Attached hereto as Exhibit “I” is a copy of the original Note dated June 15, 2004; and D Attached hereto as Exhibit “J” is a copy of the MERS Corporate Resolution. 4. Tuat said filed Notice of Pendency of this action, was in the form prescribed by statute and containing, as your affirmant believes, correctly, all the particulars required by law to be stated in such notice, was filed in the Office of the Clerk of the County of SUFFOLK, that being the County in which the mortgaged premise is situated; and that since the filing of the said notice, the verified complaint in this action has not been amended by making new parties to this action, or so as to affect other property not described in the original complaint, or so as to extend the claims of the Plaintiff as against the mortgaged premises. 5 THAT all of the said Defendants are of full age; that none of the Defendants are in the armed services of the United States of America. 6 THAT none of the Defendants are of unsound mind and that none of the Defendants, who have not appeared, are absentees. 7 THAT the time of the Defendants to appear, answer or otherwise move, with respect to the complaint has expired and has not been extended by stipulation, order of the Court or otherwise, and that none of the Defendants has appeared or answered the complaint, except for as set forth above. 8 Tuat the attached affidavits of service show that the name of the occupant of the subject property, as provided to the process server at time of service, is JANE DOE (NAME REFUSED) and request is therefore made that this name be substituted in the caption of this action in the place and stead of “JANE DOE #1" without prejudice to any of the proceedings heretofore had herein. 9 THAT Defendants captioned as “JOHN DOE #1" through “JOHN DOE #5" AND “JANE DOE #2" through “JANE DOE #5" were not served with copies of the summons and complaint and are not necessary parties Defendant. Request is therefore made that said Defendants be excised from the action and caption of the action without prejudice to any of the proceedings heretofore had herein. 10. THAT counsel for the Plaintiff provided the process server with the Summons and Complaint, printed on white paper, together with the Notice required by RPAPL 1303, printed on a different colored paper than that of the summons and complaint as can be seen from the affidavit of service attached hereto. The process server effected service upon the mortgagor(s) with the complaint copy of the notification pursuant to RPAPL 1303. An exact photocopy of said Notice is attached hereto, evidencing that the title of the Notice is in bold, 20-point font, the text of the Notice is in bold 14-point font, it was on its own page and it was served with the Summons and Complaint. 11. THAT the mortgagor(s) was served with additional notice of summons in compliance with CPLR 3215(g)(3). SUMMARY JUDGMENT 12. THAT as the attached affidavit on behalf of Plaintiff demonstrates, the denials and defenses raised in Defendant’s Answer are without merit and it is respectfully submitted that the Answer should be stricken and dismissed. As the Complaint sets forth, and as attested to in Plaintiff's affidavit of merit, Defendant AQUELA AMINNULLAH (“Defendant”) defaulted under the terms of the Note and Mortgage for failure to pay the March 1, 2010 payment and all subsequent payments accruing thereafter. Defendant has not and cannot show proof of sufficient tender to defeat Plaintiffs right to have accelerated the debt and commenced the present action. Accordingly, Defendant does not appear to have a meritorious defense to the foreclosure action and Summary Judgment is warranted. General denials are insufficient to defeat a motion for summary judgment. Stern v. Stern, 87 A.D.2d 887 (2™ Dept 1982); Pathmark Graphic v. J.M. Fields Inc. , 53 A.D.2d 531 (1 Dept. 1976) Defenses that merely plead conclusions of law without supporting facts are insufficient and fatally deficient. Becher v Feller, 884 NYS2d 83 (2" Dept 2009). Plaintiff has made out a prima facie entitlement to foreclosure, as it has submitted proof of the Mortgage and Note and of Defendant’s default in payment. Citidress II v 207 Second Avenue Realty Corp. 21 A.D.3d 774, 802 N.Y.S. 2d 393 (2005); Flagstar Bank v Bellafiore, 943 N.Y.S. 2d 551 (2™ Dept 2012): HSBC Bank USA NA v. Schwartz, 931 N.Y.S. 2d 528 (2° Dept 2011). Plaintiff has established its entitlement to judgment as a matter of law. JPMorgan Chase Bank N.A. yv Agnello, 878 N.Y.S. 2d 397 (2™ Dept 2009). 13. That Plaintiff has complied with all applicable provisions of the RPAPL Section 1304 and Banking Law, and specifically with Banking Law § 595-a and 6-1 and 6-m if applicable, in securing the aforementioned indebtedness and at all times thereafter. In accordance with RPAPL Section 1304, a 90 day notice was sent to the borrower at least 90 days ago but within the last 12 months. The 90 day notice was sent at least 90 days before the commencement of this foreclosure action. Further, the notice under RPAPL Section 1304 was in 14-point type, contained the statutorily dictated language and the addresses and phone numbers of at least five US Department of Housing and Urban Development approved housing counseling agencies in the region where the borrower resides and was mailed by registered or certified mail and first class mail to the last known address of the borrower. Plaintiff has fully and completely complied with the RPAPL Section 1304. Further, Plaintiffhas complied fully with RPAPL Section 1306 filing requirements in that the filing with the superintendent was completed within three (3) business days of the mailing. 14. THAT Defendant raises as a FIRST AFFIRMATIVE DEFENSE, that the Complaint herein fails to state a claim upon which relief may be granted. The defense is premised on the notion that the Complaint contains “boilerplate” language; and that the Complaint failed to give information regarding (inter alia) the terms of the subject Mortgage, the amount of monthly payments, and the date of default. This defense is entirely without merit however. A review of the Complaint and the exhibits annexed thereto illustrates that Defendant entered into a Mortgage agreement with Plaintiff, and that Defendant defaulted on the monthly payment obligations thereunder. The foregoing is sufficient to establish entitlement to a Judgment of Foreclosure as a matter of law. “The case law makes clear that where a mortgagee produces the mortgage and unpaid note, together with evidence of the mortgagor’s default, the mortgagee demonstrates its entitlement to a judgment of foreclosure as a matter of law...Defendant’s first affirmative defense failure to state a cause of action is boilerplate in nature and plainly lacking in merit.” La Salle Bank Nat’l. Assn. v Kosarovich, 31 A.D.3d 904, 905; 820 N.Y.S.2d 144 (34 Dep’t 2006) Internal citations omitted. 15. Here, Plaintiff produced the Mortgage and Note as exhibits to the Complaint. There is no requirement that Plaintiff explain the terms of the Mortgage, expound on any settlement attempts, or detail Defendant’s monthly payment obligations. Moreover, Defendant’s assertion that Plaintiff did not indicate the date of default is specious in nature. Schedule “E” of the Complaint does indicate the date of Defendant’s default as March 1, 2010. Defendant’s contention that Plaintiff failed to annex mortgage documents to the Complaint, is also without any merit whatsoever. The Note, Mortgage , Assignments, and Certificate of Merger are all annexed to the Complaint. Further, as a matter of law, the defense of failure to state a claim must be raised by motion pursuant to CPLR Sec. 3211 and cannot be interposed in an answer. See Bentivegna v Meenan Oil Co., 126 A.D.2d 506; 510 NYS2d 626 (2™ Dep’t 1987). For the reasons set forth herein, the first affirmative defense is wholly without merit and should be stricken in its entirety. 16. THAT Defendant raises as a SECOND AFFIRMATIVE DEFENSE, that Plaintiff lacks standing. Despite the foregoing, the defense acknowledged that the subject Note was assigned to Plaintiff by assignment recorded on March 16, 2013, before the commencement of this action. The defense then used the foregoing as a basis to assert that “Plaintiff lacks possession of the original note...” but makes no reference whatsoever of a subsequent assignment of the Note. As a result, this defense is wholly conclusory in nature and without merit. A defense that merely pleads conclusions of law without supporting facts is insufficient and fatally deficient. See Becher v Feller, 64 A.D.3d 672; 884 NYS2d 83 (2™ Dept 2009). See also G.G.F. Dev. Corp. v. Andreadis, 251 A.D.2d 624; 676 N.Y.S.2d 488 (2™ Dep’t 1998) (holding that a vague assertion that the assignment of a mortgage violated Judiciary Law Sec. 489 was insufficient to raise a triable issue of fact). Further, “one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact...mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” Zuckerman v. New York, 49 N. Y.2d 557, 562; 404 N.E.2d 718 (NY 1980). Here, Defendant acceded to the fact that Plaintiff held the Note and the time the action was commenced. Defendant failed to assert that the Note was subsequently assigned. Instead, Defendant surmises that Plaintiff no longer possesses the Note because of (inter alia) “stray markings” on the loan documents.' Thus, Defendant’s contention that Plaintiff lacks possession of the original Note, constitutes mere conjecture and an expression of hope. 17. In a mortgage foreclosure action, a plaintiff has standing where it is both 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 qa Dept 2011). Further, as the Court noted in Flushing Preferred Funding Corp v Patricola Realty Corp, 36 Misc. 3d 1240(A); 964 N.Y.S.2d 58, **8 (Suffolk Co. Sup. Ct. 2012): In contrast, the standing ofa plaintiff in a mortgage foreclosure action is measured by markedly different elements, namely, its ownership, holder status or possession of the note and mortgage at the time of the commencement of the action (see US Bank of NY v Silverberg, 86 AD3d 274, 279, 926 NYS2d 532 [2d Dept 2011]; Bank, NA v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]; Wells Fargo Bank, NA v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]). In addition, mortgage loan servicers and other agents of the owner, holder or possesor of the note and mortgage at the time of commencement possess standing to prosecute claims for foreclosure and sale (see RPAPL $1304[1] [authorizing lenders, assignees or mortgage loan servicers to commence mortgage foreclosure actions];RPAPL §1302[1] [requiring plaintiffs in some foreclosure actions to allege that it is [**9] the owner and holder of the note and mortgage or has been delegated the authority to prosecute action by such); see also Wells Fargo Bank, NA v Edwards, 95 AD3d 692, 945 NYS2d 44 [Ist Dept 2012] [action properly maintained in plaintiff's capacity as trustee under a pooling and servicing agreement that predated the commencement of the action]; CWCapital Asset Mgt. v Charney-- FPG 114 41st St, LLC., 84 AD3d 506, 923 NYS2d 453 [Ist Dept 2011] [action properly maintained in plaintiff's capacity as servicing agent]; Fairbanks Capital Corp. v Nagel, 289 AD2d 99, 735 NYS2d 13 [Ist Dept 2001] [delegation of mortgage to service agent by mortgagee was sufficient to give service agent standing to sue}; Deutsche Bank Natl. Trust Co. v Pietranico, 33 Misc 3d 528, 928 NYS2d 818 [Sup.Ct., Suffolk County, 2011] {agent and nominee of original lender had standing to prosecute action]; see also US Bank, NA v Flynn, 27 Misc 3d 802, 806, 897 NYS2d 855 [Sup. Ct., Suffolk County 2010]). Since the ownership, holder status or possessory interest of the plaintiff or its duly delegated agent bears solely upon the issue of standing, and not upon the sufficiency of the claim, the ‘It is also of note, that this affirmative defense makes the incongruous assertion that the annexed to the loan documents Complaint are blurry, while the first affirmative defense asserts that there are no loan documents annexed to the Complaint at all. pleading and proving of such interest [**10] is not an element of the plaintiff's claim for foreclosure and sale (see Wells Fargo Bank Minn, NA v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 2008]; cf, U.S. Bank Nat. Assn. v Dellarmo, 94 AD3d 746, 942 NYS2d 122 [2d Dept 2012]). (emphasis added) 18. Plaintiff was, at the time this action was commenced, the holder of the Note, having possessed the original Note endorsed in blank. A copy is attached to the Complaint. Plaintiff further refers the Court to paragraphs 2 and 4 and Exhibit A to the 12/9/14 Affidavit of David Foli. This fact alone is sufficient to afford Plaintiff standing. Vanderbilt Mortgage and Finance v Davis, 2013 N.Y. Misc. LEXIS 4027 (Suffolk County 2013); HSBC Bank USA National Association v. Carpinelli, 2013 N.Y. Misc. LEXIS 4745 (Suffolk County 2013). As the Court in Silverberg, Supra, at page **537 noted: As a general matter, once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note. See, Mortgag Electronic Registration Sys, Inc v Coakley, 41 A.D. 3 674, 838 N.Y.S. 2d 622; Smith v Wagner, 106 Misc 170, 178; 174 N.Y.S. 205 (‘assignment of the debt carries with it the security therefor, even though such security be not formally transferred in writing’).” 19. Furthermore, it has long been settled that a note holder has standing to maintain a foreclosure action so long as the mortgage and note have been delivered to the foreclosing party, and a mortgage can be transferred by delivery without a written assignment. Ebling Brewing Co. v Gennaro, 189 A.D. 782; 179 N.Y.S 384 (2™ Dep’t 1919), Fryer v Rockefeller, 63 N.Y. 268; 1875 N.Y. LEXIS 40 (NY 1875). The Uniform Commercial Code also provides that, “[t]he holder of an instrument whether or not he is the owner may ... enforce payment in his own name.” U.C.C. §3- 301. A “holder” is defined as “a person in possession of a document of title or an instrument ...issued or indorsed to him or to his order ...” U.C.C. § 1-201(20). Therefore, if possession of an instrument is delivered by voluntary transfer to an entity or person with the intention of also transferring the rights to enforce that instrument, the transferee is entitled to enforce the instrament as its holder. The Court in Deutsche Bank National Trust Company v. Musco, 2012 NY Slip Op 32377(U), **7; 2012 N.Y.Misc LEXIS 4450 (Richmond Co. 2012) when faced with an attack on the validity of a MERS assignment of mortgage by the defendant borrower found as follows: It is well settled that an assignment of mortgage does not have to be in writing and can be effected, as here, through its physical delivery to Deutsche Bank (see, LaSalle Bank N.A. v. Ahearn, supra). In the case at bar, absent any authority to the contrary, the subsequent written assignment of mortgage dated December 4, 2009 by a MERS representative pursuant to a Corporate Resolution dated March 19, 2009 may have been redundant, but it in no way invalidated the actual physical delivery of the original note and mortgage to the plaintiff trustee which occurred previously. It is also worthy to note that defendant's mortgage specifically provides MERS with the requisite authority to exercise any of lender's rights granted by said mortgage, or take any action required by the lender with reference thereto (cf, Bank of N.Y. v. Silverberg, supra). Thus, the proposed defenses and counterclaims challenging, e.g., the validity of the written assignment of mortgage by MERS, are devoid of merit. This Court should adopt the same sensible reasoning as the court in Musco, Supra. The existence of a MERS Assignment in the assignment chain is no legal impediment to Plaintiff's standing to foreclose in this case. Deutsche Bank National Trust Company as Trustee v. Pietranico, 928 N.Y.S.2d 818 (Suffolk County 2011). This defense is without merit. 20. Tuat Defendant raises as a THIRD AFFIRMATIVE DEFENSE, that Plaintiff again lacks standing. The defense is premised on the notion that (inter alia) the appurtenant Assignments were not “properly” noticed; the Assignments were improperly recorded; the Assignments failed to explain the relationship between the assignor and assignee; and the Assignments failed to explain the reason and amount paid for the assignments. This defense is again without merit however. Initially, Defendant failed to assert what rendered the recording of the Assignments improper. As aresult, the defense is wholly conclusory in nature (See Becher v Feller, 64 A.D.3d 672, G.G.F. Dev. Corp. v. Andreadis, 251 A.D.2d 624, Supra). Moreover, recording the Assignment relates solely to Plaintiff's priority, and not Plaintiffs standing to commence the action. See HSBC Bank USA Natl. Assn. v Delacadena, 25 Misc. 3d 1216(A); 901 N.Y.S.2d 907 (Suffolk Co. Sup. Ct. 2009). In the view of this Court...[a] good assignment of a mortgage is made by delivery only. It logically follows, then, that mere delivery of the instruments of indebtedness is sufficient to confer standing and the recording of a written assignment of mortgage merely serves to put the world on record notice of the transfer of rights...It is beyond dispute that Plaintiff has shown its interest in the indebtedness herein sufficient to confer standing as a matter of law, thereby vitiating any claims of Defendants to the contrary. 21, Internal citations omitted. In addition, the assertion that Plaintiff did not properly notice the assignments of mortgage is also without merit. Defendant did not assert what constitutes proper notice; did not assert how Plaintiff fell short of this unknown standard; and failed to assert ata minimum, who was not properly noticed. This defense is again conclusory in nature (See Becher Vv Feller, 64 A.D.3d 672, G.G.F. Dev. Corp. v. Andreadis, 251 A.D.2d 624, Supra). In any event, Paragraph “20" of the Mortgage (annexed to the Complaint) states in pertinent part: “The Note, or an interest in the Note, together with this Security Instrument, may be sold one or more times. J might not receive any prior notice of these sales.” Emphasis added. This defense is without merit. 22. There is also no requirement whatsoever that an assignment explain any “relationship” between the assignor and assignee; explain the reason for the assignment; specify the amount paid on the assignment; detail the effect of the assignment on any servicers; or detail the division of responsibilities between owners and servicers. Further, there is no requirement at law that an assignment must be notarized in the same state where either the assignor or assignee has their main office. These assertions are premised on no cognizable legal theories, and amount to mere conclusory allegations. 23. In addition, there is no requirement at law that the endorsement of the Note is dated, or that the endorsement takes place at the same time that the Note is assigned. To the contrary, the Note need only be endorsed to blank in order to be assigned. UCC Section 3-204(2) states in pertinent part: “An indorsement in blank specifies no particular indorsee and may consist of a mere signature. An instrument payable to order and indorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially indorsed.” Emphasis added. See also Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 A.D.3d 674; 838 N.Y.S.2d 622 (2™ Dep’t 2007) (holding that MERS was the lawful holder of the subject note endorsed in blank). This defense should be stricken in its entirety. 24. THAT Defendant raises as a FOURTH AFFIRMATIVE DEFENSE, that Plaintiff again lacks standing. This defense is premised on the notion that the initial MERS assignment was defective. The defense is again without merit however. See US Bank, N.A. v Flynn, 27 Misc. 3d 802; 897N. Y.S.2d 855 (Suffolk Co. Sup. Ct. 2010) (holding that as MERS was identified in the mortgage as the nominee for the lender, and as MERS was granted broad authority to act with respect to the Mortgage, the MERS assignment was valid). The Mortgage (annexed to the Complaint) names MERS as mortgagee of record and nominee for the lender, its successors and assigns. Further, the MERS Corporate Resolution annexed hereto as Exhibit “J” confers upon MERS broad authority to act with respect to the Mortgage. Thus, the aforesaid Assignment from MERS is indeed valid as a matter of law. This defense is without merit and should be stricken. 25. THAT Defendant raises as a FIFTH AFFIRMATIVE DEFENSE, that Plaintiff railed to reasonably attempt a modification of the subject Mortgage. Plaintiff avers that the alleged does not constitute a defense to this action. Regardless, Plaintiff appeared at the Foreclosure Settlement Part, in good faith, for conferences conducted under the supervision of the Court on June 6, 2014. The matter was referred out of the Settlement Conference Part at that time, allowing Plaintiff to proceed with this action. In addition, a mortgagor does not have the right to construe a mortgagee’s willingness to negotiate as some sort of forbearance that precludes foreclosure. See Bercy Investors Inc v Sun, 239 A.D.2d 161; 657 N.Y.S 2d 47 (Ist Dept 1997). 26. Moreover, there is no express or implied covenant in the Note or Mortgage that provides that in the event of a default thereunder, Defendant is entitled to a modification thereof. Indeed, when a mortgagor defaults on loan payments, even if only for a day, a mortgagee may accelerate the loan, require that the balance be tendered or commence foreclosure proceedings and equity will not intervene. See First Federal Savings Bank v Midura, 264 A.D.2d 407; 694 N.Y.S.2d 121 (1999). Once a mortgagor’s default has been declared and the mortgage loan accelerated, the mortgagee is not required to accept a tender of less than full repayment as demanded. Id., EMC Mortgage Corp v Stewart, 2 A.D.3d 772; 769 N.Y.S.2d 408 (2™ Dep’t 2003). The Court, as a matter of law, cannot compel Plaintiff to modify the Defendants’ loan. See Emigrant Mortgag Company v Fisher, 90 A.D.3d 823; 935 N.Y.S.2d 313 (2™ Dept 2011). It is axiomatic, even today, that stability of contract obligations must not be undermined by judicial sympathy. Id.; Graf v Hop Bldg. Corp. 254 NY 1; 171 N.E. 884 (N.Y. 1930). A determination not to modify a mortgage loan by a foreclosing bank that is under no legal obligation to modify such a loan is not unconscionable conduct and does not constitute bad faith. See JP Morgan Chase Bank N.A. v. Ilardo, 36 Misc. 3d 359; 940 N.Y.S. 2d 829 (Supreme Court Suffolk County 2012). The defense is without merit and should be stricken. 27. THAT Defendant raises as a SIXTH AFFIRMATIVE DEFENSE, that Plaintiff “promised” to modify the Defendant’s loan. Initially, Defendant proffered no information in support of this purported promise rendering the assertion merely conclusory in nature. Further, as previously stated, the parties appeared in the Foreclosure Settlement Part and the Court “released” the matter therefrom. Thus, the Court deemed that Plaintiff satisfied its obligation to attempt settlement of the matter, and did not engage in bad faith as Defendant asserts. See, Deutsche Bank Natl. Trust Co. v Musco, 2012 NY Slip Op 32377(U) **5; 2012 N.Y. Misc. LEXIS 4450 (Richmond Co. Sup. Ct. 2012) (“Notwithstanding defendant's conclusory claim of "bad faith" during settlement negotiations, a hearing on that issue apparently was never ordered by the justice presiding in the Foreclosure Conference Part”). See also JP Morgan Chase BankN.A. v. Ilardo, 36 Misc. 3d 359, Supra. Finally, to the extent that Defendant is attempting to assert an estoppel defense, such a defense is also without merit. “When a mortgagor is attempting to assert estoppel against a mortgagee who has instituted a foreclosure the mortgagor must produce evidentiary proof in admissible form ... sufficient to require a trial [of that defense] .. mere conclusions, expressions of hope, unsubstantiated allegations or assertions are insufficient.” Prudential Home Mortg. Co.. Inc. v. Ci ‘ermele, 226 A.D.2d 357; 640 N.Y.S.2d 254 (2nd Dept.,1996). Internal citations omitted. All Defendant offers are conclusions and/or unsubstantiated allegations. This defense is without merit and should be stricken. 28. THAT Defendant raises as a SEVENTH AFFIRMATIVE DEFENSE, that the subject loan was “predatory”, and Plaintiff should not have granted the loan to defendants based upon their income. This defense is again without merit however. A representation by a lender (assuming there was such a representation in this case) that a borrower can afford to repay a prospective loan is an expression of opinion of present or future expectations, which is not actionable and cannot form the basis for an affirmative defense. See Goldman v Strough Real Estate Inc, 2 A.D.3d 677; 770 NYS2d 94 (2™ Dept 2003); Crossland Savings FSB v SOI Dev Corp., 166 A.D.2d 495; 560 NYS2d 782 (2 Dept 1990); Citibank, N.A. v. NIB Assocs., LLC, 2011 NY Slip Op 31064(U); 2011 N.Y. Misc. LEXIS 1931 (Queens Co. Sup. Ct. 2011). Further, “evidence that Plaintiffs predecessor’s decision to lend money to the Defendant was unwise is insufficient by itself to raise a triable issue of fact...” See Argent Mortgage Company LLC v Mentesana, 79 A.D. 3d 1079, 1081; 915 N.Y.S.2d 591 (2™ Dept 2010). See also. JP Morgan Chase Bank v Leschins, 2011 NY Slip Op 32861(U) **5, 2011 N.Y. Misc. LEXIS 5176 (NY Sup. Ct. 2011). “Defendant likewise fails to demonstrate a meritorious defense to this foreclosure action. Her bare and conclusory allegations as to ‘predatory lending practices’ ...are insufficient to establish a meritorious defense.” See also Deutsche Bank Natl. Trust Co. v. McLean-Chance, 2013 NY Slip Op 32606(U); 2013 N.Y. Misc. LEXIS 4826 (Queens Co. Sup. Ct. 2013). It is also of note that this defense contradicts the Fifth Affirmative Defense, where Defendant cited to her husband’s passing and a loss of income as the basis for her default. This Defense is without merit and should be stricken. 29. THAT Defendant raises as an EIGHTH AFFIRMATIVE DEFENSE, that the subject loan is fraudulent. The defense is premised on the notion that brokers “may have given incorrect information...” (emphasis added) and that “/uJpon information and belief, the brokers...added or changed the loan application of the Defendant without the Defendant’s knowledge.” Emphasis added. This defense is again without merit. Initially, Defendant proffered no support for her bald allegations. Moreover, Defendant failed to allege that Plaintiff actually engaged in any fraudulent conduct. Instead, Defendant stated what Plaintiff “may have” done, and qualified her assertions as being made “upon information and belief’. In any event, a mortgage may not be set aside solely because the underlying transaction is tainted by a fraudulent representation. Jo Ann Homes at Bellmore Inc. v Dworetz, 25 N.Y.2d 112, 302 N.Y.S 2d 799 (1969). There is no indication whatsoever in the record that the Plaintiff participated in any of the alleged fraudulent and improper and/or illegal conduct on the part of the loan originator or broker, or anyone. As a matter of law, one who signs a document is conclusively bound by its terms. Pimpinello v. Swift & Co., 239 NY 159 (1930); Columbus Trust Co v Campolo, 487 N.Y.S.2d 105 (1985). Ignorance through negligence or inexcusable trustfulness does not relieve a party from a contractual obligation. Ciaramella v State Farm Ins. Company, 709 N.Y.S. 2d 296 (2000). The legal relationship between a borrower and a bank is a contractual one of debtor and creditor and does not create a fiduciary relationship between the bank and its borrower. Std Fed Bank v Healy, 777 NYS2d 499 (2™ Dept 2004). Indeed, Plaintiff owed no duty to the Defendant to prevent either its agents (assuming there are any involved here, which there are none) or anyone else from inducing Defendant to enter into this or any other mortgage transaction. American Home Mortgage Servicing Inc v McGhee, 2012 N.Y. Misc. LEXIS 5736 (Suffolk County 2012); see also, U.S. Bank National Association v Fields, 2012 N.Y. Misc. LEXIS 4025 (Suffolk County 2012). The Plaintiff in this case cannot as a matter of law be required to answer in damages for alleged misrepresentations committed by the original lender in connection with the making of the original mortgage loan. Vanderbilt Mortgage and Financ In c_v Davis, 2013 N.Y. Misc. LEXIS 4027 (Suffolk County 2013). Finally, Defendant does not allege any fraud with the slightest specificity, which alone is fatal to this defense. See CPLR Sec 3016(b). See also Cohen v. Colistra, 233 A.D.2d 542, 542; 649 N.Y.S.2d 540 (3% Dep’t 1996) “[I]t is well settled that... a party must establish that a material misrepresentation, known to be false, has been made with the intention of inducing its reliance on the misstatement, which caused it to reasonably rely on the misrepresentation, as a result of which it sustained damages.” Internal citations omitted. Here, Defendant failed to assert the necessary elements to establish a fraud defense. This defense should be stricken in its entirety. 30. THAT Defendant raises as a NINTH AFFIRMATIVE DEFENSE, that Plaintiff violated TILA and RESPA by failing to provide certain disclosures to the Defendant. However, the claim of a TILA violation is not an affirmative defense to this foreclosure as a matter of law. LaSalle Bank Nat. Assn v Kosarovich, 31 AD 3d 904; 820 N.Y.S.2d 144 (3 Dept 2006). Moreover, Defendant fails to provide any specific facts illustrating the alleged lack of compliance with this statute and fails to identify which, if any, provisions of the statute have been violated. TILA requires “meaningful” disclosure, not “perfect” disclosure, and TILA’s requirements are to be “reasonably construed and equitably applied”. Kahraman v Countrywide Home Loans Inc., 886 F. Supp. 2d 114; 2012 U.S.Dist. LEXIS 111712 (E.D. N.Y. 2012). Moreover, Defendant’s TILA claims, if any, for damages are time barred as a matter of law. TILA provides that all claims for statutory damages must be brought within one (1) year from the date of the occurrence of the violation. 15 U.S.C.A. Sec 1640(e). This is a purchase money mortgage, meaning that the extension of the right to rescind to three years in the event of an incorrect material disclosure--which would have expired under TILA as well (See, 15 U.S.C.A. Sec 1635(f))-- does not even apply as a matter of law. Finally, even assuming that Defendant has a right to rescind under TILA (she does not) and the exercise of that right was timely (it’s not, even assuming this right was even exercised) Defendant offers no tender of the necessary amount due Plaintiff to obtain rescission. Kahraman v Countrywide Home Loans Inc., 2012 U.S.Dist. LEXIS 111712 (E.D. N.Y. 2012). Defendant has no TILA defense. Period. 31. Similarly, Defendant failed to provide any specific facts illustrating the alleged lack of compliance with RESPA and failed to identify which, if any, provisions of the statute have been violated. Moreover, a disclosure violation under RESPA does not constitute a valid defense to a mortgage foreclosure action as a matter of law. See Deutsche Bank Natl. Trust Co. v. Campbell, 26 Misc. 3d 1206(A); 906 NYS 2d 779 (Kings Co Sup. Ct. 2009), Fremont Inv & Loan v Laroe, 21 Mise. 3d 1124(A); 873 NYS2d 51 (Queens Co. Sup. Ct. 2008). Defendant’s RESPA claims are similarly time barred. Defendant went on to assert that Plaintiff “may have” violated the HDMA, FHA, and the ECOA, but proffered no support for this conclusory, unsubstantiated belief. Finally, Defendant’s claim that she was told it was unnecessary to bring an attorney to the closing is specious, baseless, and conclusory in nature. This defense is without merit and should be stricken in its entirety. 32. THAT Defendant raises as a TENTH AFFIRMATIVE DEFENSE, that service of process was defective. The defense is premised on the notion that Defendant was not personally served, “or otherwise served per the requirements of the NYCPLR...” This defense is again without merit however. Initially, the defense does not assert that Defendant was never served. Instead, the defense claimed a defect in substitute service. However, the defense failed to assert what that purported defect was. Instead, Defendant merely made the conclusory assertion that she was not served per the CP:LR’s requirements. Such an assertion is insufficient to overcome the Affidavits of Service. The Affidavits annexed hereto as Exhibit “C” indicate that Defendant was served on December 12, 2013 by substitute service on her co-tenant “Jane Doe” (name refused) at the premises sought to be foreclosed, and that a copy of the Summons and Complaint was mailed to Defendant at the premises on December 23, 2013 as proscribed by CPLR § 308(2). Affidavits of service constitute prima facie evidence of proper service and a conclusory denial of service is insufficient to raise any material issue of fact. See Simmons First National Bank v Mandracchia, 248 A.D.2d 375; 669 N.Y.S.2d 646 (2 Dept 1998); American Business Credit, Inc. v. Sanabria 19 A.D.3d 624; 799 N.Y.S.2d 77 (2™ Dept.2005). Moreover, Defendant failed to move for dismissal within 60 days of serving the Answer pursuant to CPLR Rule 3211(e). Thus, Defendant is barred from raising such a defense here. This Defense is without merit and should be stricken. 33. THAT Defendant raises as an ELEVENTH AFFIRMATIVE DEFENSE, “wrongful foreclosure.” In support of this notion, Defendant asserted that Plaintiff did not accept partial payment of the arrears. Nonetheless, Defendant again failed to proffer any support for this bald allegation. Moreover, Defendant failed to assert how or why Plaintiff's “failure” to accept partial payment constitutes a viable defense to foreclosure. To the contrary, the aforesaid is not a viable defense in a foreclosure proceeding. See United Cos. Lending Corp. v. Hingos, 283 A.D.2d 764, 765; 724 N.Y.S.2d 134 (3" Dep’t 2001). It is well settled that a mortgagee is not required to accept an insufficient tender of payment of arrears. Stated another way, a valid tender requires an actual proffer of all mortgage arrears, which generally encompasses everything to which the mortgagee is entitled, including any interest or late charges. Additionally, once a default has been declared and the debt has been accelerated, the mortgagee is not required to accept anything less than full repayment of the debt. Internal citations omitted. Thus, this defense is again conclusory in nature and without merit. This defense should be stricken. 34. THAT Defendant raises as a TWELFTH AFFIRMATIVE DEFENSE, that Plaintiff commenced the instant action while Defendant was “actively seeking” a modification. This defense is again conclusory in nature, as Defendant failed to clarify what constitutes “actively seeking” a modification. Moreover, the defense is materially infirmed for the reasons previously set forth in Paragraphs “25" to “26" herein. This defense should be stricken. 35. THAT Defendant raises asa THIRTEENTH AFFIRMATIVE DEFENSE, that Plaintiff failed to give proper 90 days notice under RPAPL 1304. However, a 90 day notice was sent to Defendant on June 7, 2013 by both certified and regular mail. A copy of the notice is annexed hereto as Exhibit “E” with the USPS record of delivery. Plaintiff further refers the Court to paragraph 7 and Exhibit E to the 12/9/14 Affidavit of David Foli. A mere simple denial by a mortgagor of receipt of such a notice does not give rise to a valid defense to a foreclosure. See Sansone v Cavallaro, 284 A.D.2d 817; 727 N.Y.S.2d 516 (3 Dept 2001). The law presumes that a letter properly addressed, stamped and mailed has been duly delivered to the addressee (and) there is a presumption of receipt which flows from fact of mailing. SeeDeFeo v Merchant, 115 Misc. 2d 286, 288 (Westchester 1982); Accord Trusts and Guarantee Co v Barnhardt, 270 NY 350, 352 (1936). See also RPAPL Sec. 1304(2) (notice deemed given when it is mailed by the mortgagee, not when it is received by the mortgagor). Finally, this defense is in direct contradiction with the tenth affirmative defense, where it was asserted that service of process was improper (Paragraphs “64" through “67" of the Answer). Here, Defendant now admits to service of the summons and complaint. “The first official indication that the Defendant had that the Plaintiff would foreclose was that the Defendant was served with a Summons and Complaint.” Emphasis added (83 of the Answer). The aforesaid further evidences the specious nature of these affirmative defenses. This defense should be stricken in its entirety. 36. THAT Defendant raises as a FOURTEENTH AFFIRMATIVE DEFENSE, that as Plaintiff has purportedly engaged in “robo-signing” in the past, this action “needs to be dismissed”. Nonetheless, Defendant has proffered no support for the notion that Plaintiff ever engaged in robo- signing, or that any of the appurtenant documents were robo-signed here. Thus, Defendant’s assertions again constitute mere expressions of hope, and are thereby without merit (See Zuckerman v. New York, 49 N.Y.2d 557, Supra). This defense should be stricken. 37. THAT Defendant raises as a FIFTEENTH AFFIRMATIVE DEFENSE, that the subject loan was infirm by accounting errors. Nonetheless, Defendant failed to specify the nature of these purported errors, and failed to proffer any support for the purportedly accurate amount owed. Thus, the defense is again merely conclusory in nature and without merit. See General Electric Capital Corporation v Ocean Marine Inc., et al., 2011 NY Slip Op 33154(U); 2011 N.Y. Misc. LEXIS 5809 (Nassau Co. Sup. Ct. 2011) (holding that the affirmative defense of payment was insufficient to survive Summary Judgment in a foreclosure proceeding, as answering defendants failed to provide support for the defense). It is also of note, that Plaintiff admitted to falling into arrears. Thus, the gravamen of the defense is a dispute as to the amount owed. However, the existence of such a dispute does not preclude the issuance of a summary judgment directing the sale of the mortgaged property. See Long Island Savings Bank of Centereach FSB v Denkensohn, 222 A.D.2d 659; 635 N.Y.S.2d 683 (2"' Dept 1995), Crest/Good Manufacturing Co. Inc v Baumann, 160 A.D.2d 831; 554.N.Y.S.2d 264 (2 Dept 1990). Any dispute as to the exact amount owed plaintiff pursuant to the Mortgage and Note, may be resolved after a reference pursuant to RPAPL 1321. This Defense is thereby without merit, and should be stricken. 38. THAT Defendant raises as a SIXTEENTH AFFIRMATIVE DEFENSE, that Plaintiff violated the FDCPA. This defense is again without merit however. Purported violations of the FDCPA do not give rise to a foreclosure defense. See Deutsche Bank Nat’] Trust Co. v Gillio, 22 Misc.3d 1131(A); 881 N.Y.S.2d 362 (Suffolk Co. Sup. Ct. 2009). Moreover, although the defense asserts that a “detailed breakdown” was requested, Defendant failed to proffer proof of sucha written request pursuant to 15 U.S.C §1692g. Based upon the foregoing, the defense is again without merit and should be stricken. Further, Plaintiff's standing has no bearing whatsoever on the FDCPA, and Defendant has proffered no support for such a notion. Moreover, Defendant’s standing defense was already addressed and refuted in Paragraphs “16" to “19" herein. Defendant’s assertion that Plaintiff “wrongfully report[ed] negative information...” is also conclusory in nature and without merit. This defense should be stricken. 39, THAT Defendant raises as a SEVENTEENTH AFFIRMATIVE DEFENSE, that Defendant is entitled to a conference in the Foreclosure Settlement Part. As previously stated in Paragraph “25" herein however, the parties did appear for conferences in the Foreclosure Settlement Part. This defense is moot, without merit, and should be stricken. 40. TuaT Defendant raises as a FIRST COUNTERCLAIM, that Plaintiff prevented Defendant from submitting additional mortgage payments once Defendant fell into arrears. This counterclaim is without merit however. Initially, the claim again admits that Defendant defaulted on the subject loan. Moreover, the claim contradicts Defendant’s earlier assertion that Plaintiff rejected partial payment. Instead, Defendant now incongruously asserted that Plaintiff rejected additional payments. Further, Defendant failed to proffer any support for these bald allegations. In any event, as previously stated herein, such a defense is without merit as a matter of law. See United Cos. Lending Corp. v. Hingos, 283 A.D.2d 764, Supra. Finally, Defendant failed to assert cognizable damages as a result of the purported rejection of payments. The only purported damage asserted by Defendant is the loss of the subject home to foreclosure. However, as Defendant has not yet “lost” the subject home, this has not yet ripened into a cognizable damage. This counterclaim should be stricken. 41. THAT Defendant raises as a SECOND COUNTERCLAIM, that Plaintiff failed to grant a modification to Defendant, which damaged defendant’s credit and could potentially cost Defendant her home. This counterclaim is again without merit however, as Defendant proffered no support for the notion that his credit was adversely impacted by the instant action. Further, such a claim cannot be premised on Plaintiff’s “failure” to modify the loan for the reasons stated at length herein. Defendant also failed to proffer any details regarding “Plaintiff’s false implied promise”, rendering the assertion again conclusory in nature. Finally as previously stated, as Defendant has not yet “lost” the subject home, Defendant cannot assert damages in relation thereto. This counterclaim should be stricken. 42. THAT Defendant raises as a THIRD COUNTERCLAIM, that Defendant was damaged because Plaintiff commenced this action during settlement negotiat