Motion-Secondary: Deutsche Bank National Trust Company As Trustee For Long Beach Mortgage Loan Trust 2004-3, Asset-Backed Certificates, Series 2004-3 v. William Lewis, Hoa T. Ngo, Omni Credit Services Of Florida, Inc., Erin Capital Management, Llc, Capital One Auto Finance, Inc., The Bank Of New York As Trustee Under The Pooling And Servicing Agreement Dated As Of November 1, 1996 For Metropolitan Asset Funding, Inc., Mortgage Pass-Through Certificates, Series 1996-A, Iva Lewis

On August 13, 2018 a Motion-Secondary was filed involving a dispute between Deutsche Bank National Trust Company As Trustee For Long Beach Mortgage Loan Trust 2004-3, Asset-Backed Certificates, Series 2004-3, and Capital One Auto Finance, Inc., Erin Capital Management, Llc, Hoa T. Ngo, Iva Lewis, Omni Credit Services Of Florida, Inc., The Bank Of New York As Trustee Under The Pooling And Servicing Agreement Dated As Of November 1, 1996 For Metropolitan Asset Funding, Inc., Mortgage Pass-Through Certificates, Series 1996-A, William Lewis, for Real Property - Mortgage Foreclosure - Residential in the District Court of Orange County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
_______________ __......---------------------------------X

DEUTSCHE BANK NATIONAL TRUST INDEX NO.: EF008505-2018
COMPANY AS TRUSTEE FOR LONG BEACH
MORTGAGE LOAN TRUST ASSET-
2004-3, AFFIRMATION IN SUPPORT OF
BACKED CERTIFICATES, SERIES 2004-3, PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT.
Plaintiff(s),
DEFAULT JUDGMENT
AND APPOINTING REFEREE TO
vs
COMPUTE

WILLIAM LEWIS; HOA T. NGO; OMhl CREDIT
SERVICES OF ERIN CAPITAL MORTGAGED PROPERTY:
FLORIDA, INC.;
CAPITAL ONE AUTO 73 CARPENTER ROAD
MANAGEMENT, LLC;
FINANCE, INC.; THE BANK OF NEW YORK AS NEW HAMPTON, NY 10958

TRUSTEE UNDER THE POOLING AND COUNTY: ORANGE
SERVICING AGREEMENT DATED AS OF SBL#:
NOVEMBER 1, 1996 FOR METROPOLITAN Section 24,
ASSET MORTGAGE PASS-
FUNDING, INC., Block 1,
THROUGH CERTIFICATES, SERIES 1996-A, Lot 43

#1" #12,"
"JOHN DOE through "JOHN DOE the last
twelve names being fictitious and unknown to

plaintiff, the persons or parties intended being the

tenants, occupants, persons or corporations, if any,

having or claiming an interest in or lien upon the
premises described in the Complaint,

Defendant(s).
_____________________ _____ _____________________-----------X

Tracy Starasoler, Esq., pursuant to CPLR 2106 and under the penalties of perjury, affirms

as follows:

1. I am an attorney at law and an associate with RAS Boriskin, LLC the attorneys of

record for the Plaintiff. I am fully familiar with the facts, court papers and proceedings of this

action based upon a review of the file maintained by my ofBce.

2. True and accurate copies of the following documents are attached hereto:

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Document _____ Tab
Certificate of Merit Exhibit A
Note Exhibit B
Mortgage Exhibit C
Assignments Exhibit D
Notice of Default Exhibit E
RPAPL §1304 90 Day Notice Exhibit F

Department of Defense Search results Exhibit G
Summons and Complaint Exhibit H
Notice of Pendency Exhibit I
Service of process Affidavits Exhibit J
Affidavit of Service by Mail pursuant to CPLR 3215(g)(3)(iii) Exhibit K
Affidavit of Merit and Amount Due Exhibit L
Affirmation of Regularity Exhibit M
Power of Attorney with Pooling and Servicing Agreement Exhibit N
Answer of Defendant WILLIAM LEWIS Exhibit O

Legalback No. 2 - filed with this application
contemporanencly
Proposed Order of Reference

All applicable personal non-public information has been redseted from the attached

supporting documents.

3. This residential mortgage foreclosure action was commenced by filing the

anmmans and complaint in the ORANGE County Clerk's office on August 13, 2018, in the County

where the mortgaged property is located. The action was brought to foreclose a residential

mortgage executed by WILLIAM LEWIS on March 16, 2004 and which was subsequently

recorded on May 27, 2004.

4. That WILLIAM LEWIS ("Borrowers") executed a Note dated March 16, 2004 in

the amount of $260,000.00 ("Note"). As security for the Note, WILLIAM LEWIS,

("Mortgagors") executed a mortgage in favor of LONG BEACH MORTGAGE COMPANY,

secured by the Premies, dated March 16, 2004 and recorded on May 27, 2004 in Liber 11511 at

Page 1625 ("Mortgage"). A copy of the Note is annexed hereto as Exhibit "B". A copy of the

Mortgage is annexed hereto as Exhibit "C".

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5. Prior to the commene~men> of this action the note and mortgage were
underlying

validly assigned from LONG BEACH MORTGAGE COMPANY to DEUTSCHE BANK

NATIONAL TRUST COMPANY, AS TRUSTEE FOR LONG BEACH MORTGAGE LOAN

TRUST 2004-3, ASSET-BACKED CERTIFICATES SERIES 2004-3 by written instrument dated

August 11, 2008 and recorded in the office of the County Clerk/City Register on December 1,

2008 in book 12757, at page 566. A true and accurate copy of the Assignments are annexed hereto

as Exhibit "D".

6. On August 13, 2018, Plaintiff filed a notice of pendency in accordance with RPAPL

$1331 and CPLR Article 65, a copy of which is attached hereto as Exhibit "I".

7. The summons, complaint and notice of pendency are in the form prescribed by

statute and contain all the particulars required by law. The s-~~~ns cornplies with the

require RPAPL
â€”.c.â€”.~of $1320, contains the required notice in boldface type and is in the format

required statute. to the affidavit of service the:-' â€”"â€”
"-::s was served together with
by According

the complaint. Copies of the summons, complaint, notice of pendency and affidavits of service

are annexed hereto as Exhibits "H, I, and J".

8. On August 13, 2018, Plaintiff was holder the subject note. See af5davit of DENNIS

HERMAN, attached hereto as Exhibit "L".

9. The certificate of merit required pursuant to CPLR $3012-b was filed and served

"A"
together with supporting documents and is a<~~had hereto as Exhibit

10. Pursuant to CPLR $3408 the court held a mandatory settlement conference in this

action.

a. A settlement was not re~i-.~ and the case was released from the settlement

conference part on May 21, 2019.

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11. According to the affidavit of service filed in the Orange Clerk's Office, the

summons was served with the complaint. The affidavits of service are attached hereto as Exhibit

"J". Defendañts were served with the notice required by RPAPL §1303 printed on colored paper

together with the summons and complaint printed on white paper. The RPAPL §1303 notice

complies with the requirements of that statute, with the title in bold, 20-point type and the text in

bold, 14-point type. The RPAPL §1303 notice was delivered to the mortgagors on itsown separate

page, together with the summons and complaint.

12. Defendant were timely served with the 90-Day Pre-Foreclosure notice required by

RPAPL §1304. Plaintiff filed the name, address and telephone number of the Defendant, the

amount claimed to be due, and the type of loan at issue with the superiñteñdeñt of banks within

three business days of the mailing of the 90-day Pre-Foreclosure notice as required by RPAPL

§1306. Copies of these notices are attached hereto as Exhibit "F", see also the affidavit of

DENNIS HERMAN, attached hereto as Exhibit "L".

13. Plaintiff served defendants with copies of the summons in compliance with CPLR

§3215(g)(3). The affidavit of service by mail is attached hereto as Exhibit "K".

14. Tenants reside at the mortgaged property. Therefore Plaintiff requests that IVA

LEWIS be added as named defendant in thisaction pursuant to RPAPL §1311, and that the caption

be amended to add IVA LEWIS in place of the "John Doe #1 "defendants as party defendants to

this action.

15. The following defendants did not answer or appear and their time to answer has

expired: HOA T. NGO; OMNI CREDIT SERVICES OF FLORIDA, INC.; ERIN CAPITAL

MANAGEMENT, LLC; CAPITAL ONE AUTO FINANCE, INC.; THE BANK OF NEW YORK

AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF

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NOVEMBER 1996 FOR METROPOLITAN ASSET MORTGAGE PASS-
1, FUNDING, IN.,

THROUGH CERTIFICATES, SERIES 1996-A,. Accordingly, these defeñdants are in default.

16. No defendant is an infant.

17. No defendant is in the armed services of the United States of America.

18. The following defcñdants were served out of state: OMNI CREDIT SERVICES OF

FLORIDA, INC. AND CAPITAL ONE AUTO FINANCE, INC.

19. Upon information and belief no defendant is incompetent.

20. Except for WILLIAM LEWIS who has answered.

21. No previous application for Motion for Judgment has been made.
Summary

SUMMARY JUDGMENT LEGAL STANDARD

Summary Judgment is Proper

22. CPLR § 3212 authorizes summary judgment where, upon the submission of all papers

and proof, a cause of action is established as a matter of law. As the Court of Appeals held in

Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974):

[W]hen there is no genuine issue to be resolved at trial, the
case should be summarily decided, and an unfounded
reluctance to employ the remedy will only serve to swell the
Trial Calendar and thus deny to other litigants the right to have
their claims promptly adjudicated.

See also, Blechman v. LJ Peiser's & Sons, Inc., 186 A.D.2d 50, 51 (1st Dept. 1992) (citing

Pomeroy, 35 N.Y.2d at 364).

23. Summary Judgment is particularly appropriate in a foreclosure action where the

borrowers have failed to pay the amounts due under the mortgage. American Sav. Bank FSB v.

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Imperto, 553 N.Y.S.2d 444, 444 (1st Dep't 1990); Fiedler v. Schefer, 387 N.Y.S.2d 711, 711-712

(2nd Dep't 1976). New York Courts have held repeatedly that mortgage provisions are to be

strictlyenforced and summary judgment should be applied in foreclosure actions. City ofNew York

v. Grosfeld Realty Co., 173 A.D.2d 436, 436 (2nd Dep't 1991); Gabriel v. 351 St. Nicholas

Equities, Inc., 532 N.Y.S.2d 660, 661 (1st Dep't 1990); Mazzañti v. Stachowski, 458 N.Y.S.2d

110, 110 (4th Dep't 1982).

Plaintiff's Prima Facie Case

24. It is the Plaintiff's initial burden to establish entitlement to forcelosure. To establish

a prima facie case in an action to foreclose a mortgage, a plaintiff must produce "the mortgage, the

default"
unpaid note, and evidence of . See, HSBC Bank USA, Nat. Ass'n v. Spitzer, 18 N.Y.S.3d

67, 68, 131 A.D.3d 1206, 1206--07 (2 Dept.,2015); . New York Community Bank v. Fessler, 88

A.D.3d 667, 930 N.Y.S.2d 601 (2d Dep't 2011); Verela v. Citrus Lake Dev., Inc. et al.,53 A.D.3d

574, 862 N.Y.S.2d 96 (2d Dep't 2008); Haselnuss v. Delta Testing Labs., 249 A.D.2d 509, 671

N.Y.S.2d 361 (2d Dep't 1998); East N Y Sav. Bank v. Baccaray, 214 A.D.2d 601, 625 N.Y.S.2d

88 (2d Dep't 1995). See also Mariani v. Dyer, 597 N.Y.S.2d 358, 359 (1st Dep't 1993) (holding

that an affidavit showing due execution of loan documents and default in payment establislies

prima facie case entitling plaintiff to summary judgment unless defendant submits evidentiary

proof sufficient to raise a triable issue); Metro. Distrib. Serv., Inc. v. DiLascio, 574 N.Y.S.2d 755,

756 (2d Dep't 1991); New York State Mortg. Loan Enforcement & Administration Corp. v. Coney

Island Site Five Houses, Inc., 491 N.Y.S.2d 671, 678 (2d Dep't 1985).

Upon Establishing Prima Facie Case, the Burden Shifts to

Defendant

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25. Once Plaintiff establishes itsprima facie case for summary judgment, it isincumbent

upon the answering defendants to submit proof sufficient to raise a genuine question of fact

rebutting the plaintiff's prima facie showing or in support of the affirmative defenses asserted in

his añswer or otherwise available to them. Flagstar Bank v. Bellafore, 94 A.D.3d 1044, 943

N.Y.S.2d 551 [2d Dept.2012] ; Jessabell Realty Corp. v. Gonzales, 117 A.D.3d 908, 985 N.Y.S.2d

897 [2d Dept.2014] Grogg Assocs. v. South Rd Assocs., 74 A.D.3d 1021 907 N.Y.S.2d 22 [2d

Dept.2010].

26. Notably, self-serving and conclusory allegations do not raise issues of fact and do not

require plaintiff to respond to alleged affirmative defenses which are based on such allegations.

See, Deutsche Bank Nat. Trust Co. v. Quinones, 114 A.D.3d 719, 981 N.Y.S.2d 107 (2d Dep't

2014); Charter One Bank FSB v. Leone, 45 A.D.3d 958, 845 N.Y.S.2d 513 [3d

Dept.2007] ; Rosen Auto Leasing, Inc. v. Jacobs, 9 A.D.3d 798, 780 N.Y.S.2d 438 [3d Dept.2004]).

27. Under familiar rules "one opposing a motion for summary judgment must produce

evidentiary proof in admissible form sufficient to require a trial of material questions of fact on

which he rests his claim . .. mere conclusions, expressions of hope or unsubstantiated allegations

insufficient."
or assertions are Amatulli by Amatulli v. Delhi Construction Corp., 77 N.Y.2d 525,

533, 569 N.Y.S.2d 337, 341 (1991) (citing Zuckerman v. City ofNew York supra); see also Dewey

v. Gordner, 248 A.D.2d 876, 669 N.Y.S.2d 766 (3d Dept. 1998). Where the answering defendant

has failed to offer any facts to rebut a prima facie evidence showing by plaintiff of entitlement to

default judgment, plaintiff is entitled to an order of summary judgment. See Winegrad v. New York

Univ. Med Center, 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985); Zuckerman v.

City of New York 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). Defendant's mere

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denials and baseless affirmative defenses failto esublish an issue of fact as they are not supported

by any fact or evidence.

28. Pursuant to CPLR § 3018(b), a party pleading an affirmative defense "shall plead all

matters which if not pleaded would be likely to take the adverse party by surprise or raise issues

pleading."
of fact not appearing on the face of a prior

29. While the CPLR has liberalized pleading requirements, the minimum requirements

stillapply so that parties and courts will have notice of each defense.

30. In Foley v. D'Agostino, 248 N.Y.S.2d 121, 125 (1st Dept. 1964) the Court analyzed

the then new CPLR liberalized pleading requirements, holding that:

[I]tis clear that, under Civil Practice Law and Rules, the
statements in pleadings are stillrequired to be factual, that is,
"notice"
the essential facts required to give must be stated, . ...

[and] a party may supplement or round out his pleading by
conclusory allegations . .. . if
the facts upon which the pleader
relies are also stated.

Defendant's Affirmative Defenses Must Be Stricken

38. In the case at bar, the Defendant fails to present more than mere conclusory statements

and bald allegations in the Answer. There is no recitation of any facts, as required by CPLR §§

3013 and 3018(b).

39. "Defenses which merely plead conclusions of law without supporting facts are

stricken."
insufficient and should be See Petracca v. Patracca, 706 N.Y.S.2d 513, 514 (2nd Dept.

2003); See also CPLR §3018(b); Cohen Fashion Optical, Inc. v. V&MOptical, Inc., 858 N.Y.S.2d

260, 261 (2nd Dept. 2008); Plemmeñou v. Arvanitakis, 833 N.Y.S.2d 596, 598 (2nd Dept. 1987);

Beñtiveigña v. Meenan Oil Co., Inc., 510 N.Y.S.2d 626, 627 (2d Dept 1987); Glenesk v. Guidance

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Realty Corp., 321 N.Y.S.2d 685, 687 (2nd Dept. 1971); Fremont Investment & Loan v. Session,

2008 NY Slip Op. 52132, 5 (N.Y. Sup. 2008).

40. Based upon the foregoing, the Defendant's affirmative defenses must be stricken and

Plaintiff must be granted judgment. Id.
summary

EACH OF THE DEFENDANT'S AFFIRMATIVE DEFENSES LACK
MERIT AS A MATTER OF FACT AN LAW

STANDING

Plaintiff received the Note and the Mortgage via physical transfer that was

memorialized a written assignment prior to the commencement of the instant action, as
by

clearly evidenced by the indorsement payable to holder that establishes the intent and the

transfer of the Note, and by the notarized written assignment that establishes that the

transfer took place on a date prior to the commencement of the instant action. See Exhibits

"C"
to "D". Moreover, Plaintiff has conclusively established its standing by providing an

affidavit by its representative specifically stating that Plaintiff had p.-ssession of the note

prior to commencement of the instant action. See Exhibit "L".

The basis of a plaintiff's standing is the physical transfer of the note to the plaintiff

prior to the commencement of the action. "A bond and mortgage may be transferred by the

mere delivery of the bond and mortgage without a written instrument of assigñment,

provided an intention to transfer the bond and mortgage accompanies the delivery". 78

N.Y. Jur.2d Mortgages §257-9. Here, Plaintiff's standing is not based on the written

assignment but on the assignor's intention to transfer the Note to Plaintiff and the ultimate

physical transfer of the Note to Plaintiff. This intention and transfer does not need to be

established by written evidence; indeed, in American Banana Company, Inc. v. Venezolana

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International de Aviaci0ñ, the First Department of the Appellate Division held that the

intention to transfer the note can be established by oral communication alone and does not

require any specific language.See Venezolana International, 67 A.D.2d 613, 411 N.Y.S.2d

889 (1st Dep't 1979) aff'd 49 N.Y.2d 848 (1980); Bourne v. Haynes, 235 N.Y.S.2d 332,

334 (Sup. Ct. Kings Cnty. 1962); see Leon v. Martinez, 84 N.Y. 2d 83, 88 (1988).

Here, however, we have the sworn written affidavit of Dennis Herman stating that

Plaintiff was, at the time of filing the action the owner and holder of the Note, a written

endorsement to the Note payable to holder, and a written notarized assignment of the

Mortgage executed prior to the cemmencement of the action. Therefore, because here we

have a physical transfer of the Note and Mortgage prior to the commannement of the action

that is supported by a sworn written affidavit and by a notarized written assignacñt,

Plaintiff has established its standing to commence and prosecute the instant acdon. See

Bank of N.Y. Mellon v. Manuel Quezada, Index No. 3820/2013, Motion Seq. #1 (Sup. Ct.

Dutchess Cnty. May 1, 2014) ("MERS in its capacity as nominee for Countrfwide Home

Loans, Inc., assigñcd the mortgage to plaintiff. Plaintiff has further produced an affidavit

of a loan servicing company servicing the mortgage loan at issue in this action stating that

Plaintiff was in passession of the note at the time this action was commenced.

Corroborating this assertion is a blank indorsement on the note from Countrywide Home

Loans, Inc. Such evidence is sufficient to demonstrate that plaintiff was in possessien and

the holder of the note at the time the action was commenced. See Aurora Loan Services,

LLC v. Taylor, 114 A.D.3d 627 (2d Dep't 2014) affirmed 2015 NY Slip Op. 04872 (N.Y.

Ct. of Appeals June 11, 2015). Having produced the mortgage, the unpaid note and

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evidence of default, plaintiff has demonstrated a prima facie case of its entitlement to

summary judgment.")(Subsequent decision added).

In addition to the foregoing, Plaintiff also estãblished its standing to commence the

instant action by annexing a copy of the Note and Mortgage to the Complaint. See Exhibit

"H". The filing of a copy of the Note and Mortgage at the time of filing of the Complaint

is sufficient to establish Plaintiff's standing to foreclose the Mortgage. See Deutsche Bank

National Trust Co. v. Leigh, 137 A.D.3d 841, 28 N.Y.S.3d 86 (2d Dep't 2016); Federal

National Mortgage Ass'n v. Yakaputz It Inc., 141 A.D.3d 506, 35 N.Y.S.3d 236 (2d Dep't

2016); JPMorgan Chase Bank; Nat. Ass'n v. Weiñberger, 142 A.D.3d 643, 37 N.Y.S.3d

286 (2d Dep't 2016); Nationstar Mortgage, LLC v. Catizone, 127 A.D.3d 1151, 9 N.Y.S.3d

315 (2d Dep't 2015).

RPAPL§1306

Plaintiff has complied with RPAPL §§ 1304 and 1306 as evidenced by sworn

Affidavit of Dennis Herman, Contract Management Coordinator of PHH Mortgage

Corporation, successor by merger to Ocwen Loan Servicing, LLC.

Here, Plaintiff demonstated its mailing of the 90 Day Pre-Foreclosure Notices in

compliance with RPAPL §1304 by fumishing the following evidentiary support:

• The sworn Affidavit of Dennis Herman, Contract Management Coordinator of

PHH Mortgage Corporation, successor by merger to Ocwen Loan Servicing, LLC

which attests to the PHH Mortgage Corporation, successor by merger to Ocwen

Loan Servicing, LLC s business practice for generating and mailing of the 90-Day

Pre-Foreclosure Notices and attests that based upon his review of PHH Mortgage

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Corporation, successor by merger to Ocwen Loan Servicing, LLC 's admissible

business records PHH Mortgage Corporation, süecessor by merger to Ocwen Loan

Servicing, LLC followed itsstimdard practices with respect to the mailing of the 90

Day Pre-Foreclosure Notices ( See Exhibit "L");

• Actual copies of the 90 Pre-Foreclosure Notices together with copies of the
Day

barcodes with which each notice was mailed ( See Exhibit "F");

• The One completed with the New York State Department of Financial
Step Filing

Services which memorializes the mailing of the 90-Day Pre-Foreclosure Notices as

a matter of public record (See Exhibit "F").

Accordingly, Plaintiff demonstrated its compliance with RPAPL §1304 and §1306.

RPAPL§1303

Here, the sworn Affidavit of Service of Devon Etbridge plainly attests that on August

20, 2018 at 1:32 pm at 73 Carpenter Road, New Hampton, NY 10958, Defendant was personally

served with a copy of the Summes, Complaint, and the RPAPL §1303 Homeowner's

Foreclosure Notice pursuant to CPLR §308 (2) respectively. See Exhibit "J".

An Affidavit of service in conformity with CPLR 306 is prima facie evidence that

Evidence"
process was properly served. "Prima Face creates a rebuttable presumption, meaning

that the facts asserted in the document must be contrary evidence. Maldonado v. County of

(2"d (2"d
Nassau, 229 A.D. 2d 376 Dept. 1996). See also Sando Corp. v. Aris, 209 A.D. 2d 682

2nd (2nd
Dept. 1994), Gehway Corp. v. Elgut, 177 A.D. 467 Dept. 1990). A swom denial of

service without swearing to specific facts to rebut the statements in the process servicer's

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affidavit is insufficient to rebut the prima facie proof of service. (Simonds v. Grobman, 277

(2nd
A.D.2d 369, 716 N.Y.S. 692 Dept, 2000).

In order to rebut this presumption, Defendant is required to come forward with a

sworn denial contesting some fact contained in the Affidavit of Service with detailed and

probative facts that substsñtiate a triable issue of fact. See Rosario v. Beverly Road Realty Co.,

(2nd
supra at 875 ;Bankers Trust Co. of California N.A. v. Tsoukas, 303 A.D. 2d 343

2003).

Instead, Defendant sets forth a bald allegation. This bald allegation does not plead

detailed and probative facts sufficient to create an issue of fact. See Exhibit "J".

Here, Defendant's statemcat ecñstitutes a mere unsubstantiated and conclusory

denial of service that is legally insufficient to accomplish itsintended purpose. See Cavalry

Portfolio Services, LLC v. Reisman, 55 A.D. 3d 524 (2d Dept. 2008); Rosario v. Beverly Road

Realty Co., supra at 875; General Motors Acceptance Corp. v. Grade A Auto Body, Inc.,_21 A.D.

3d 447 (2d Dept. 2005); Household Finance Realty Corp. of New York v. Brown, supra.

CERTIFICATE OF MERIT

It should be noted that the foreclosure affirmation was codified in CPLR §3012-b

requiring the filing of a Certificate of Merit with the summons and complaint in foreclosure

actions on home loans commencing on or after August 30, 2013.

In this instance, Plaintiff filed a Certificate of Merit on November 22, 2013, the date

this action was commenced. Moreover, the required documents including copies of the

Note and Mortgage were attached to the Certificate of Merit. Itshould be noted that the

evidence"
foreclosure affirmation itself has been held not to constitute "substantive nor a

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argument"
"new or defense in favor of the defendant mortgagor. See LaSalle Bank, NA v.

(2nd
Pace, 100 A.D.3d 970, 971 Dept. 2012).

ATTORNEY'S FEES

The claim is premature because the action is stillpending, and Defendant has not been

victorious in the litigation or appeared in the action by an attorney. Plaintiff asserts that this

lawsuit is in no way frivolous. Defendant entered into a contract with Plaintiff, PlaintifPs

predecessor-in-interest loaned Defendant a large sum of money, and Defendant defaulted on his

obligation- Plaintiff has been harmed and is entitled to be made whole. See Exhibit "B".
greatly

"C"
See Exhibit and the Affidavit of Dennis Herman, sworn to on June 26, 2019.

THE CAPTI_ON SHOULD BE AMENDED TO REFLECT THE PROPER PARTIES

1. Plaintiff is entitled to an amendment of the caption herein to reflect those parties who have,

since the filing of the Summons and Complaint, been identified as having a potential interest in

the Subject Premises.

2. In a mortgage foreclosure action, Plaintiff is entitled to amend the caption to delete and/or

Defendant• Does" Does"
substitute those sued therein as "John and "Jane upon the findings and

discovery of those parties occupying the Subject Premises. See Wells Fargo Bank, NA v. Sergey

Ambrosov, 120 A.D.3d 1225 (2nd Dept. 2014), citing, Flagstar Bank v. Bellaflore, 94 A.D.3d at

1046, 943 N.Y.S.2d 551; US Bank, N.A. v. Boyce, 93 A.D.3d at 783, 940 N.Y.S.2d 656;

18-182473 - VaG

14 of 20
FILED: ORANGE COUNTY CLERK 07/01/2019 03:48 PM INDEX NO. EF008505-2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 07/01/2019

Neighborhood Hous. Servs. of N.Y City, Inc. v. Meltzer. 67 A.D.3d 872, 873-874, 889 N.Y.S.2d

627.

3. Here, upon service of the Summons and Complaint, Plaintiff has ascertained the idenuties

of those parties occupying the Subject Premises not specifically named within itsComplaint. The

parties identified after filing of the Summons and Complaint are as follows: Iva Lewis.

4. As stated previously hereinabove and as it appears by the Affidavits of Service, all

necessary Defendants were served with copies of the Summons and Complaint. Additionally, as

set forth in the Affidavits of Service, the mortgagors, homeowners and obligors were served with

the foreclosure notice as prescribed in RPAPL § 1303.

5. Therefore, the Caption herein should be amended to reflect those holders of subordinate

liens and/or parties maintaining an interest in the Subjet Premises, and dropping those fictitiously

named Defendants that are neither necessary, nor proper party Defendants herein.

PLAINTIFF IS

Case Info

Judge

Elaine Slobod Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

July 01, 2019

Case Filing Date

August 13, 2018

County

Parties

Attorney opted out of eFiling Attorney for the Defendant
BORISKIN, SARA Z. Attorney for the Plaintiff
CAPITAL ONE AUTO FINANCE, INC. Defendant
DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR LONG BEACH MORTGAGE LOAN TRUST 2004-3, ASSET-BACKED CERTIFICATES, SERIES 2004-3 Plaintiff
ERIN CAPITAL MANAGEMENT, LLC Defendant
Hoa T. Ngo Defendant
Iva Lewis Defendant
OMNI CREDIT SERVICES OF FLORIDA, INC. Defendant
THE BANK OF NEW YORK AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF NOVEMBER 1, 1996 FOR METROPOLITAN ASSET FUNDING, INC., MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1996-A Defendant
William Lewis Defendant
ANTHONY CELLUCCI Attorneys for Plaintiffs
ANNETTE SHACHTER Attorney
ALECIA DANIEL Attorneys for Plaintiffs
TRACY STARASOLER Attorney
SAMANTHA SANDLER Attorney
SHAUNA-LEE CLARKE Attorney
ANTHONY LOBIONDO Attorney
DANIEL SWEENEY Attorneys for Plaintiffs

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