Preview
FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM INDEX NO. 000934-2017
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021
Andrea K. Bailey, Acting County Clerk
Livingston County Government Center
6 Court Street, Room 201
Geneseo, New York 14454
(585) 243-7010 ~ Fax (585) 243-7928
Livingston County Clerk Recording Page
Received From: Return To:
CHRISTOPHER E. MEDINA CHRISTOPHER E. MEDINA
40 MARCUS DRIVE SUITE 200 40 MARCUS DRIVE SUITE 200
MELVILLE, NY 11747 MELVILLE, NY 11747
Document Type: CIVIL ACTION - MISC Document Desc: AFFIDAVIT OR
AFFIRMATION IN OPPOSITION TO MOTION
Plaintiff Defendant
DEUTSCHE BANK NATIONAL TRUST SEE DOCUMENT
COMPANY, AS TRUSTEE FOR MORGAN
STANLEY ABS CAPITAL I INC. TRUST 2003-
NC8
Recorded Information:
State of New York
Index #: 000934-2017 County of Livingston
EFiling through NYSCEF
Acting Livingston County Clerk
This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York
AKB
Do Not
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF LIVINGSTON
------------------------------------X INDEX NO:
DEUTSCHE BANK NATIONAL TRUST 00934-2017
COMPANY, AS TRUSTEE FOR MORGAN
STANLEY ABS CAPITAL I INC. TRUST 2003- ATTORNEY
NC8, AFFIRMATION IN
OPPOSITION TO
Plaintiff, DEFENDANT’S MOTION
- against - Hon. Daniel J. Doyle, J.S.C.
DONALD ZIELINSKI, LAURA ZIELINSKI A/K/A Return: July 19, 2021
LAURA A. ZIELINSKI, CAPITAL ONE BANK,
AMERICREDIT FINANCIAL SERVICES, INC,
RAB PERFORMANCE RECOVERIES, LLC,
JERICA CLOSE,
Defendant(s).
------------------------------------X
Christopher E. Medina, an attorney duly admitted to practice law before the courts of the State of
New York, affirms the following under the penalty of perjury:
1. That I am associated with the law firm of Aldridge Pite, LLP, the attorneys for U
Deutsche Bank National trust Company, as Trustee for Morgan Stanley ABS Capital I Inc., Trust
2003-NC8 (“Plaintiff”) and as such I am fully familiar with the facts hereinafter set forth based
upon a review of the file maintained by my office. The statements of fact are not false and this is
not a frivolous pleading.
2. This affirmation is submitted in opposition to defendant, Jerica Close’s
(“Defendant”) Motion seeking (i) an order returning this matter to the settlement conference part;
and (ii) an order vacating the default judgment entered against Jerica Close pursuant to CPLR
5015 (“Defendant’s Motion”).
3. As will be shown herein, Defendant’s Motion is meritless, as a result, Defendant’s
Motion should be denied in its entirety.
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I. PRELIMINARY STATEMENT
4. Defendant, who did not answer or timely appear in this action, is seeking to
vacate the default judgment against her but does not explain why she did not answer the
complaint. Instead she relies on the disbarment of an attorney named, Louis Asandrov. As such
Defendant seems to invoke law office error as a reasonable excuse1 to vacate the default
judgment but we are not presented an affidavit of Louis Asandrov, a retainer agreement or any
admissible evidence of law office error as will be further discussed below.
5. Moreover, Defendant does not seek leave to submit a late answer or annex a
proposed answer to Plaintiff’s pleadings and as such her request to vacate her default in this
action is defective as she fails to show a potential meritorious defense. Defendant’s sole
proposed defense as to standing2 is meritless on its face and the court should also take note that
Defendant is not an obligor or mortgagor under the loan documents subject to this action.
6. Finally, Defendant’s request for settlement conferences is meritless as Defendant,
who was originally named in this action as a tenant, failed to appear at the settlement conference
part when this matter was scheduled for a conference on December 12, 2018. Additionally,
Defendant’s ownership interest came about from a deed dated May 24, 2019 after the conference
was held. Nonetheless, as Defendant is in default, she is not entitled to such affirmative relief
unless she can vacate her default in this action.
II. BRIEF BACKGROUND AND PROCEDURAL HISTORY
7. Donald Zielinski and Laura Zielinski a/k/a Laura A. Zielinski (the “Borrowers”)
executed and delivered a note dated June 13, 2003, for the sum of $58,100.00, payable to New
Century Mortgage Corporation, and as security for payment of this debt the Borrowers gave a
1Defendant’s notice of motion only states that she seeks to vacate the default judgment pursuant to CPLR 5015 but
it is clear through the Memorandum of Law in support of the motion that Defendant relies solely on CPLR
5015(a)(1) in attempting to show a reasonable excuse and meritorious defense to the action.
2 Defendant also invokes the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and loss
mitigation but these are not defenses as discussed below.
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mortgage that was recorded against 6156 East Lake Road, Conesus, NY 114438 (“Premises”).
Plaintiff commenced the instant foreclosure action, on June 9, 2015, based on Defendant’s failure
to make the payment due June 1, 2016, as well as the subsequent payments. (A copy of the filed
Summons and Complaint and Certificate of Merit are available in the New York State Courts
Electronic Filing System [“NYSCEF”] as Documents #1 and #2, while the Supplemental
Summons and Amended Complaint are filed as Documents #11 and #12. Plaintiff’s pleadings
also include a copy of the note, mortgage and assignments of mortgage).
8. Defendant was served with the summons and complaint personally, pursuant to
CPLR § 308 on December 30, 2017. Defendant failed to appear and file an answer to Plaintiff’s
complaint within her time to answer. (A copy of the affidavit of service is filed under NYSCEF
Document #8).
9. Defendant was then served with the supplemental summons and amended
complaint personally, pursuant to CPLR § 308 on January 20, 2018. Defendant failed to appear
and file an answer to Plaintiff’s amended complaint within her time to answer. As such,
Defendant is in default. (A copy of the affidavits of Service are filed under NYSCEF Documents
#18 and 19).
10. Plaintiff appeared for and participated in court mandated and mediated settlement
conferences pursuant to CPLR R 3408 on December 12, 2018, at which time Plaintiff was
permitted to proceed with the foreclosure as the Borrowers failed to appear. (See the foreclosure
Settlement Conference Intake Form filed as NYSCEF Document #30). Defendant did not appear
for the conference but would not have been eligible for the conference as Defendant was only a
tenant of the property at that time (see Defendant’s Exhibit “A”).
11. Plaintiff moved for an Order of Reference and default judgment on March 12,
2020 and the motion was granted December 2, 2020 (“Order”). (See a copy of the Order of
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Reference and default judgment, served with notice of entry, filed in NYSCEF as document
#65).
12. Defendant has now appeared in the action filing; (1) an appeal to the Order (see
NYSCEF Document #68); (2) a hardship declaration (see NYSCEF Document #70); and a
motion to restore this matter to the settlement conference part and to vacate the default judgment.
11. The documentary evidence demonstrates that the moving Defendant was duly
served with process herein and defaulted in answering Plaintiff’s complaint in a timely manner.
12. The Defendant were served personally pursuant to CPLR § 308, on December 30,
2017 with the summons and complaint and January 20, 2018 with the supplemental summons
and amended complaint.
13. It is established that plaintiff, through the production of the affidavit of service of
the process server (see NYSCEF Documents #8 and #18), has made a prima facie showing of
proper service, and merely pleading that the Court lacks personal jurisdiction by reason of
improper service is insufficient to rebut plaintiff’s prima facie case. Grundberg v. George
Associates, 104 A.D.2d 745, 480 N.Y.S.2d 217 (1st Dept. 1984); U.S. Bank, N.A. v. Vanvliet,
24 A.D.3d 906 (3d Dept. 2005).
14. A process server’s affidavit constitutes prima facie evidence of proper service.
Chemical Bank v. Darnley, 300 A.D.2d 613, 752 N.Y.S.2d 397 (2d Dept. 2002); Mortgage
Electronic Registration Systems, Inc. v. Schotter, 50 A.D.3d 983, 857 N.Y.S.2d 592 (2d Dept.
2008).
15. Furthermore, prima facie evidence of proper service can only be rebutted by
specific factual denials; conclusory statements are insufficient. Associates First Capital Corp. v.
Wiggins, 75 A.D.3d 614, 904 N.Y.S.2d 668 (2d Dept. 2010).
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16. Here, Defendant does not contest service of process in the action and does not
seek to use service of process as a reasonable excuse for her default.
III. MOVING DEFENDANT HAS FAILED TO DEMONSTRATE ENTITLEMENT
TO VACATE HER DEFAULT OR TO SUBMIT A LATE ANSWER
17. Defendant does not seek to vacate her default in failing to timely answer, nor does
she seek to submit a late answer. Instead Defendant only seeks to vacate the default judgment
awarded in the Order.
18. As was demonstrated above, the Defendant was duly and properly served with
process herein pursuant to CPLR § 308 on two separate occasions. The Defendant failed to
answer the Plaintiff’s complaint or otherwise appear herein to defend and is, consequently, in
default.
19. Even if Defendant sought to vacate her default in this action and for leave to
submit an answer, such a request would be properly denied.
20. First, the Defendant has not sought to vacate her default in answering the
Plaintiff’s complaint and, consequently, the Defendant’s request to vacate the Order under CPLR
5015(a) (1) should be denied for this reason alone.
Upon the application of a party, the court may extend the time to appear or plead, or
compel the acceptance of a pleading untimely served, upon such terms as may be just and
upon a showing of reasonable excuse for the delay or default. … If the application for an
extension of time is not made until after the expiration of the period for pleading, the
proper procedure is to make a motion to open the default. Moreover, a pleading may not
be served after the expiration of the allotted time in the absence of such a motion to be
relieved of the default.
84 N.Y. Jur. 2d Pleading § 86 (citing, CPLR § 3012(d); CPLR § 2004; Incorporated Village of
Hempstead Community Development Agency v. Karabelas, 185 A.D.2d 296, 586 N.Y.S.2d 282
(2d Dept. 1992); Gelch v. Malrich Realty Corp., 47 A.D.2d 644, 364 N.Y.S.2d 16 (2d Dept.
1975) ;
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The Civil Practice Law and Rules permit the court, upon application, to enlarge the time
for pleading notwithstanding the prescribed period has already expired. The proper
procedure is to make a motion to open the default and to extend the time to plead, rather
than to submit a simple motion to extend the time to plead, because the moving party is in
default. In those instances where a party attempts to serve a pleading after the statutory
time has expired, and the adverse party rejects the pleading as untimely, the defaulting
party can seek to be relieved of the default by serving a motion, … to compel the
acceptance of the pleading, upon a showing of reasonable excuse for the delay or default.
Any such application to the court under the CPLR provision governing extensions of time
generally or the CPLR provision governing extension of time to plead to be relieved of a
default must be made upon notice.
Although the CPLR provision governing extensions of time generally permits an
application for an extension to be made before or after the expiration of the time fixed, a
motion by a defendant for an extension in which to serve an answer after the expiration of
the original answering period must precede the application for a default judgment.
84 N.Y. Jur. 2d Pleading § 88 (citing, CPLR §§ 2004, 2211 and 3012(b)(d); Lo Pinto v. Lo
Pinto, 87 A.D.2d 585, 447 N.Y.S.2d 768 (2d Dept. 1982); Borreggine v. Di Ponzio, 10 A.D.2d
811, 197 N.Y.S.2d 856 (4th Dept. 1960); Rait v. Bauer, 121 A.D.2d 704, 504 N.Y.S.2d 144 (2d
Dept. 1986); CPLR § 2211; Horowitz v. McDuffie, 199 A.D.2d 758, 605 N.Y.S.2d 463 (3d
Dept. 1993); Wrye v. Ciba-Geigy Corp., 92 A.D.2d 341, 461 N.Y.S.2d 910 (3d Dept. 1983)).
21. Second, Defendants waited until Plaintiff received a default judgment.
“… We have previously held that a defendant may move for an extension of time to
answer, notwithstanding expiration of the original answering period, where, as here, the
motion for an extension precedes an application for a default judgment (see, Wrye v.
Ciba–Geigy Corp., 92 A.D.2d 341, 343, 461 N.Y.S.2d 910). …” Horowitz v. McDuffie,
199 A.D.2d 758, 605 N.Y.S.2d 463 (3d Dept. 1993).
22. Third, the Defendant has failed to seek the vacature of her default and for leave to
submit a late answer so the motion should be denied for that reason alone. It is an error to grant a
party relief not set forth in said party’s notice of motion. See, J. A. Valenti Electric Co. v Power
Line Constructors, Inc., 123 A.D.2d 604, 506 NYS2d 769 (2d Dept. 1986) (a party is not entitled
to relief where it failed to serve notice of motion or notice of cross-motion demanding such
relief). See also, Blaikie v Borden Co., 47 Misc 2d 180, 262 NYS2d 8 (1965); Phoenix
Enterprises Ltd. Partnership v Insurance Co. of North America, 130 A.D.2d 406, 515 NYS2d
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443 (1st Dept. 1987); Kantor v Pavelchak, 134 A.D.2d 352, 520 NYS2d 830 (2d Dept. 1987);
Potter v Blue Shield, 216 A.D.2d 773, 629 NYS2d 93 (3d Dept. 1995).
23. Fourth, the Defendant had failed to demonstrate his entitlement to the vacature of
his default in timely answering the Plaintiff’s complaint. It is well established that a party
seeking to vacate a default in answering is required to demonstrate, through the submission of
supporting facts in evidentiary form, both a reasonable excuse for the default and the existence of
a meritorious defense. Hageman v. Home Depot U.S.A., Inc., 25 A.D.3d 760, 761, 808 N.Y.S.2d
763 (2d Dept. 2006); Matter of Zrake v. New York City Dept. of Educ., 17 A.D.3d 603, 793
N.Y.S.2d 151 (2d Dept. 2005); Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d 553,
554, 725 N.Y.S.2d 76) (2d Dept. 2001). The Defendant, in her moving papers, has failed to
demonstrate either.
a. The Defendant Failed to Demonstrate a Reasonable Excuse
24. The Defendant has failed to demonstrate the existence of a reasonable excuse for
the Defendant’s default in answering the Plaintiff’s complaint. Additionally, Defendant presents
no reasonable excuse for failing to answer or oppose Plaintiff’s Order of reference.
25. As was demonstrated above, itis clear that service was properly effectuated on
the Defendant. Thus, the Defendant cannot and does not seek to use failure to serve as a
reasonable excuse.
26. Defendant instead claims law office error as a reasonable excuse defaulting,
however, at best Defendant’s allegations are vague and ambiguous.
27. Defendant claims to have consulted with an attorney by the name of Louis
Asandrov but does not provide a retainer agreement or even a timeline for when she met with the
attorney. At most Defendant’s affidavit seems to imply that she met with the attorney around the
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time she was served with the amended complaint and that she then sought a deed to the property,
which occurred in May 2019. (See Defendant’s Affidavit at paragraph 8).
28. Did Defendant retain Louis Asandrov for the purpose of defending her in the
action or to obtain a deed to the property? If so, what was the retainer for? When did she meet
with the attorney? What was it that gave Defendant the impression that he would appear or
defend her in the action?
29. We are not provided with an affidavit from Louise Asandrov or any admissible
evidence to demonstrate law office error in this matter. Defendant fails to establish law office
failure as this must be supported by detailed allegations of fact explaining the law office failure.
See, Cantor v. Flores, 94 A.D.3d 936, 943 N.Y.S.2d 138 (2d Dept. 2012); In re Esposito, 57
A.D.3d 894, 870 N.Y.S.2d 109 (2d Dept. 2008); Gazetten Contracting, Inc. v. HCO, Inc., 45
A.D.3d 530, 844 N.Y.S.2d 721 (2d Dept. 2007).
30. Defendant’s vague, conclusory and unsubstantiated allegations are insufficient to
establish law office failure. See, Id.
31. Additionally, Defendant’s reliance on the order disbarring the attorney is
insufficient as the order is in no way connected to this case. Louis Asandrov was also,
presumably, an attorney in good standing at the time of the alleged discussions and during
Defendant’s time to answer.
32. Here, Defendant claims to be a victim of malpractice but only presents vague
uncorroborated hearsay statements. Clearly, Defendant did not properly establish law office
failure as a reasonable excuse for his default.
33. Moreover, since Defendants fail to present a reasonable excuse for his default
there is no need to determine if he presented a potential meritorious defense. See, Aurora Loan
Services, LLC v. Lucero, 131 A.D.3d 496, 14 N.Y.S.3d 707 (2d Dept. 2015); Emigrant Bank v.
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Wiseman, 127 A.D.3d 1013, 6 N.Y.S.3d 670 (2d Dept. 2015); Tribeca Lending Corp. v. Correa,
92 A.D.3d 770, 938 N.Y.S.2d 599 (2d Dept. 2012).
34. Here, the Court can properly deny Defendant’s motion to vacate based on the
showing of proper service of process and for failure to present a reasonable excuse in failing to
answer the complaint and failing to oppose Plaintiff’s Motion for Order of Reference. The Court
need not consider the Defendant’s alleged defenses raised.
b. Defendant failed to demonstrate a potential meritorious defense.
35. Defendant fails to assert a proposed answer but discusses two potential defenses
in her affidavit. Defendant asserts standing and failure to comply with the COVID-19
Emergency Eviction and Foreclosure Prevention Act of 2020.
36. It is respectfully asserted that Plaintiff has demonstrated a prima facie case and
that Defendant failed to present a reasonable excuse or meritorious defense to vacate her default
or any basis to vacate the default judgment awarded in the Order.
37. Pursuant to CPLR § 3215 Plaintiff need only show: (1) proof of service of the
Summons and Complaint; (2) proof of the facts constituting the claim; and (3) proof of the
default. Plaintiff has met this burden. See U.S. Bank Natl. Assn. v Wolnerman, 135 A.D.3d 850,
24 N.Y.S.3d 343 (2d Dept. 2016).
38. Clearly, Plaintiff met its burden when submitting the affidavits of service (see
NYSCEF Document #47), the loan documents (see NYSCEF Documents #39-41), and the
Affidavit of Daniel Delpesche, Contract Management Coordinator of PHH Mortgage
Corporation, acting as servicer and attorney-in-fact for Plaintiff, submitted with Plaintiff’s
motion for default judgment Order of Reference (see NYSCEF Documents #49 and 51). (See
NYSCEF Documents #38-54 for the exhibits to Plaintiff’s Motion).
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39. Nonetheless, Defendant does not even seek to challenge the merits of Plaintiff’s
foreclosure action outside of alleging that Plaintiff lacks standing. Here, the Borrowers, do not
deny execution of the loan documents, nor do they deny his default under their terms.
40. Accordingly, there is no dispute that the Borrowers executed the note and
mortgage that are the subject of this action, nor is there any dispute that the loan is in default. “In
a mortgage foreclosure action, a plaintiff establishes its prima facie entitlement to judgment as a
matter of law by producing the mortgage and the unpaid note, and evidence of the default.”
Loancare v. Firshing, 130 A.D.3d 787, 14 N.Y.S.3d 410 (2d Dept. 2015). See also Wells Fargo
Bank, N.A. v. Cohen, 80 A.D.3d 573, 915 N.Y.S.2d 569 (2d Dept. 2014).
i. Plaintiff has standing
41. Defendant’s allegations as to standing are meritless. The fact is that Plaintiff’s
standing is demonstrated, not only with the inclusion of the affidavit supporting Plaintiff’s
motion for default judgment and Order of Reference, but also by an assignment of mortgage and
by the copy of the note that was annexed to the pleadings and amended pleadings.
42. It is well settled case law that in order to commence a mortgage foreclosure
action, the plaintiff must have either a legal or equitable interest in the mortgage. See
Countrywide Home Loans, Inc. v. Gress, 68 A.D.3d 709, 888 N.Y.S.2d 914 (2d Dept. 2009);
Bank of New York v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532 (2d Dept. 2011);
Citimortgage, Inc. v. Rosenthal, 88 A.D.3d 759, 931 N.Y.S.2d 638 (2d Dept. 2011).
43. A plaintiff has standing where it the holder or assignee of the note and the
mortgage at the time the action is commenced. Citimortgage, Inc. v. Rosenthal, 88 A.D.3d 759,
931 N.Y.S.2d 638 (2d Dept. 2011); Federal National Mortgage Association v. Youkelsone, 303
A.D.2d 546, 755 N.Y.S.2d 730 (2d Dept. 2003).
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44. Once the note is tendered to and accepted by an assignee, the mortgage passes as
an incident to the note. See Bank of New York v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532
(2nd Dept. 2011); Mortgage Electronic Registration Systems, Inc. v. Coakley, 41 A.D.3d 674,
838 N.Y.S.2d 622 (2nd Dept. 2007). An “assignment of the debt carries with it the security
therefore, even though such security be not formally transferred in writing…” Bank of New
York v. Silverberg, 86 A.D.3d 274, 280, 926 N.Y.S.2d 532, 537 (2nd Dept. 2011), citing Smith v.
Wagner, 106 Misc. 170, 178 [1919].
45. Either a written assignment of the underlying note or the physical delivery of the
note prior to the commencement of the foreclosure action is sufficient to transfer the obligation,
and the mortgage passes with the debt as an inseparable incident. US Bank National Assoc. v.
Cange, 96 A.D.3d 825, 947 N.Y.S.2d 522 (2d Dept. 2012); Aurora Loan Services, LLC v.
Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609, 618 (2d Dept. 2011).
46. Here, the assignment of mortgage dated March 14, 2016, assigned the subject
note and mortgage prior to the commencement of the action. (See NYSCEF Document # 41).
47. “[P]laintiff established, prima facie, that it had standing by demonstrating that it
had physical possession of the note prior to the commencement of the action, as evidenced by its
attachment of the note to the summons and complaint at the time the action was commenced.”
See, Deutsche Bank Nat. Trust Co. v. Logan, 146 A.D.3d 861, 862 45 N.Y.S.3d 189 (2d Dept.
2017); See also, Deutsche Bank Nat. Trust Co. v. Umeh, 145 A.D.3d 497 (2nd Dept. 2016);
Nationstar Mortg., LLC v. Weisblum, 143 A.D.3d 866, 39 N.Y.S.3d 491 (2nd Dept. 2016);
Deutsche Bank Natl. Trust Co. v Leigh, 137 A.D.3d 841 (2nd Dept. 2016); JPMorgan Chase
Bank, N.A. v Weinberger, 142 A.D.3d 643 (2nd Dept. 2016); Nationstar Mtge., LLC v.
Catizone, 127 A.D.3d 1151, 1152 (2d Dept. 2015).
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48. In this case, the complaint contained a copy of the original endorsed note, the
recorded mortgage and recorded assignment of mortgage. Therefore, Plaintiff established
standing as holder of the note and mortgage. (See NYSCEF Documents #1, #2, #11 and #12).
ii. Plaintiff is not in violation of the COVID-19 Emergency Eviction and
Foreclosure Prevention Act of 2020
49. This is not a defense to a foreclosure action as the COVID-19 Emergency
Eviction and Foreclosure Prevention Act of 2020 directed the courts, not plaintiff’s counsel,
lenders or servicers, to mail out hardship declarations in pending matters. (A copy of the
December 31, 2020, March 15, 2021 and May 24, 2021 Memorandums from the Hon. Lawrence
K. Marks are annexed hereto as Exhibit “1”.
50. Nonetheless, Defendant’s allegation appear to be moot and of no consequence as
Plaintiff has not moved towards judgment after the enactment of the COVID-19 Emergency
Eviction and Foreclosure Prevention Act of 2020 and because Defendant has filed her hardship
declaration staying this action through August 31, 2021.
iii. Seeking Loss Mitigation is not a defense to a foreclosure action and
Defendant is not entitled to an Order scheduling settlement conferences
51. In so far as Defendant is seeking loss mitigation, the allegations are not a defense
to foreclosure. Nor does sympathy provide a basis to alter the terms of the mortgage and note. It
has long been held that sympathy does not provide a basis to alter contractual obligations. Key
Intern. Mfg Inc. v. Stillman, 103 A.D.2d 475, 480 N.Y.S.2d 528 (2nd Dept. 1984)
52. As Defendant is now the owner of the property, she can submit an application
seeking to assume the liability of the loan and to modify the loan. Defendant can also seek
alternative forms of settlement.
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53. Nonetheless, she is not entitled to an order scheduling settlement conferences as
Plaintiff has already satisfied CPLR 3408 when appearing for the settlement conference on
December 12, 2018 (See NYSCEF Document # 18).
54. Defendant also obtained ownership interest well after the matter was removed
from the settlement conference part.
55. Moreover, this action is also stayed through August 31, 2021 due to the hardship
declaration and Plaintiff’s matter is also currently on hold for loss mitigation review.
56. In this regard Defendant is not entitled to an order setting this matter down in the
settlement conference part because the matter is stayed.
57. Finally, Defendant is not the obligor and has defaulted in this action. As
previously discussed, Defendant fails to present a reasonable excuse or meritorious defense to
vacate her default. As a defaulted defendant, she is not entitled to affirmative relief, such as an
order placing this matter in the settlement conference part.
58. Nonetheless, Defendant can continue to pursue loss mitigation options but
Plaintiff should be able to proceed with the foreclosure once the stay concludes, assuming the
matter does not settle.
IV CONCLUSION
59. Defendant is not entitled to vacate the default judgment awarded in the Order and
is not entitled to an order vacating her default in answering the complaint or for leave to serve an
answer, even assuming arguendo, that Defendant made such a request.
60. Defendant presents a vague reasonable excuse involving a disbarred attorney but
fails to present the court with an affidavit or admissible evidence to support a law office error
claim. Defend
Preview
FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM INDEX NO. 000934-2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 Andrea K. Bailey, Acting County Clerk Livingston County Government Center 6 Court Street, Room 201 Geneseo, New York 14454 (585) 243-7010 ~ Fax (585) 243-7928 Livingston County Clerk Recording Page Received From: Return To: CHRISTOPHER E. MEDINA CHRISTOPHER E. MEDINA 40 MARCUS DRIVE SUITE 200 40 MARCUS DRIVE SUITE 200 MELVILLE, NY 11747 MELVILLE, NY 11747 Document Type: CIVIL ACTION - MISC Document Desc: AFFIDAVIT OR AFFIRMATION IN OPPOSITION TO MOTION Plaintiff Defendant DEUTSCHE BANK NATIONAL TRUST SEE DOCUMENT COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2003- NC8 Recorded Information: State of New York Index #: 000934-2017 County of Livingston EFiling through NYSCEF Acting Livingston County Clerk This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York AKB Do Not 1 ofDetach 16 IndexNO. INDEX # : 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF LIVINGSTON ------------------------------------X INDEX NO: DEUTSCHE BANK NATIONAL TRUST 00934-2017 COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2003- ATTORNEY NC8, AFFIRMATION IN OPPOSITION TO Plaintiff, DEFENDANT’S MOTION - against - Hon. Daniel J. Doyle, J.S.C. DONALD ZIELINSKI, LAURA ZIELINSKI A/K/A Return: July 19, 2021 LAURA A. ZIELINSKI, CAPITAL ONE BANK, AMERICREDIT FINANCIAL SERVICES, INC, RAB PERFORMANCE RECOVERIES, LLC, JERICA CLOSE, Defendant(s). ------------------------------------X Christopher E. Medina, an attorney duly admitted to practice law before the courts of the State of New York, affirms the following under the penalty of perjury: 1. That I am associated with the law firm of Aldridge Pite, LLP, the attorneys for U Deutsche Bank National trust Company, as Trustee for Morgan Stanley ABS Capital I Inc., Trust 2003-NC8 (“Plaintiff”) and as such I am fully familiar with the facts hereinafter set forth based upon a review of the file maintained by my office. The statements of fact are not false and this is not a frivolous pleading. 2. This affirmation is submitted in opposition to defendant, Jerica Close’s (“Defendant”) Motion seeking (i) an order returning this matter to the settlement conference part; and (ii) an order vacating the default judgment entered against Jerica Close pursuant to CPLR 5015 (“Defendant’s Motion”). 3. As will be shown herein, Defendant’s Motion is meritless, as a result, Defendant’s Motion should be denied in its entirety. 1 2 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 I. PRELIMINARY STATEMENT 4. Defendant, who did not answer or timely appear in this action, is seeking to vacate the default judgment against her but does not explain why she did not answer the complaint. Instead she relies on the disbarment of an attorney named, Louis Asandrov. As such Defendant seems to invoke law office error as a reasonable excuse1 to vacate the default judgment but we are not presented an affidavit of Louis Asandrov, a retainer agreement or any admissible evidence of law office error as will be further discussed below. 5. Moreover, Defendant does not seek leave to submit a late answer or annex a proposed answer to Plaintiff’s pleadings and as such her request to vacate her default in this action is defective as she fails to show a potential meritorious defense. Defendant’s sole proposed defense as to standing2 is meritless on its face and the court should also take note that Defendant is not an obligor or mortgagor under the loan documents subject to this action. 6. Finally, Defendant’s request for settlement conferences is meritless as Defendant, who was originally named in this action as a tenant, failed to appear at the settlement conference part when this matter was scheduled for a conference on December 12, 2018. Additionally, Defendant’s ownership interest came about from a deed dated May 24, 2019 after the conference was held. Nonetheless, as Defendant is in default, she is not entitled to such affirmative relief unless she can vacate her default in this action. II. BRIEF BACKGROUND AND PROCEDURAL HISTORY 7. Donald Zielinski and Laura Zielinski a/k/a Laura A. Zielinski (the “Borrowers”) executed and delivered a note dated June 13, 2003, for the sum of $58,100.00, payable to New Century Mortgage Corporation, and as security for payment of this debt the Borrowers gave a 1Defendant’s notice of motion only states that she seeks to vacate the default judgment pursuant to CPLR 5015 but it is clear through the Memorandum of Law in support of the motion that Defendant relies solely on CPLR 5015(a)(1) in attempting to show a reasonable excuse and meritorious defense to the action. 2 Defendant also invokes the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and loss mitigation but these are not defenses as discussed below. 2 3 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 mortgage that was recorded against 6156 East Lake Road, Conesus, NY 114438 (“Premises”). Plaintiff commenced the instant foreclosure action, on June 9, 2015, based on Defendant’s failure to make the payment due June 1, 2016, as well as the subsequent payments. (A copy of the filed Summons and Complaint and Certificate of Merit are available in the New York State Courts Electronic Filing System [“NYSCEF”] as Documents #1 and #2, while the Supplemental Summons and Amended Complaint are filed as Documents #11 and #12. Plaintiff’s pleadings also include a copy of the note, mortgage and assignments of mortgage). 8. Defendant was served with the summons and complaint personally, pursuant to CPLR § 308 on December 30, 2017. Defendant failed to appear and file an answer to Plaintiff’s complaint within her time to answer. (A copy of the affidavit of service is filed under NYSCEF Document #8). 9. Defendant was then served with the supplemental summons and amended complaint personally, pursuant to CPLR § 308 on January 20, 2018. Defendant failed to appear and file an answer to Plaintiff’s amended complaint within her time to answer. As such, Defendant is in default. (A copy of the affidavits of Service are filed under NYSCEF Documents #18 and 19). 10. Plaintiff appeared for and participated in court mandated and mediated settlement conferences pursuant to CPLR R 3408 on December 12, 2018, at which time Plaintiff was permitted to proceed with the foreclosure as the Borrowers failed to appear. (See the foreclosure Settlement Conference Intake Form filed as NYSCEF Document #30). Defendant did not appear for the conference but would not have been eligible for the conference as Defendant was only a tenant of the property at that time (see Defendant’s Exhibit “A”). 11. Plaintiff moved for an Order of Reference and default judgment on March 12, 2020 and the motion was granted December 2, 2020 (“Order”). (See a copy of the Order of 3 4 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 Reference and default judgment, served with notice of entry, filed in NYSCEF as document #65). 12. Defendant has now appeared in the action filing; (1) an appeal to the Order (see NYSCEF Document #68); (2) a hardship declaration (see NYSCEF Document #70); and a motion to restore this matter to the settlement conference part and to vacate the default judgment. 11. The documentary evidence demonstrates that the moving Defendant was duly served with process herein and defaulted in answering Plaintiff’s complaint in a timely manner. 12. The Defendant were served personally pursuant to CPLR § 308, on December 30, 2017 with the summons and complaint and January 20, 2018 with the supplemental summons and amended complaint. 13. It is established that plaintiff, through the production of the affidavit of service of the process server (see NYSCEF Documents #8 and #18), has made a prima facie showing of proper service, and merely pleading that the Court lacks personal jurisdiction by reason of improper service is insufficient to rebut plaintiff’s prima facie case. Grundberg v. George Associates, 104 A.D.2d 745, 480 N.Y.S.2d 217 (1st Dept. 1984); U.S. Bank, N.A. v. Vanvliet, 24 A.D.3d 906 (3d Dept. 2005). 14. A process server’s affidavit constitutes prima facie evidence of proper service. Chemical Bank v. Darnley, 300 A.D.2d 613, 752 N.Y.S.2d 397 (2d Dept. 2002); Mortgage Electronic Registration Systems, Inc. v. Schotter, 50 A.D.3d 983, 857 N.Y.S.2d 592 (2d Dept. 2008). 15. Furthermore, prima facie evidence of proper service can only be rebutted by specific factual denials; conclusory statements are insufficient. Associates First Capital Corp. v. Wiggins, 75 A.D.3d 614, 904 N.Y.S.2d 668 (2d Dept. 2010). 4 5 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 16. Here, Defendant does not contest service of process in the action and does not seek to use service of process as a reasonable excuse for her default. III. MOVING DEFENDANT HAS FAILED TO DEMONSTRATE ENTITLEMENT TO VACATE HER DEFAULT OR TO SUBMIT A LATE ANSWER 17. Defendant does not seek to vacate her default in failing to timely answer, nor does she seek to submit a late answer. Instead Defendant only seeks to vacate the default judgment awarded in the Order. 18. As was demonstrated above, the Defendant was duly and properly served with process herein pursuant to CPLR § 308 on two separate occasions. The Defendant failed to answer the Plaintiff’s complaint or otherwise appear herein to defend and is, consequently, in default. 19. Even if Defendant sought to vacate her default in this action and for leave to submit an answer, such a request would be properly denied. 20. First, the Defendant has not sought to vacate her default in answering the Plaintiff’s complaint and, consequently, the Defendant’s request to vacate the Order under CPLR 5015(a) (1) should be denied for this reason alone. Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for the delay or default. … If the application for an extension of time is not made until after the expiration of the period for pleading, the proper procedure is to make a motion to open the default. Moreover, a pleading may not be served after the expiration of the allotted time in the absence of such a motion to be relieved of the default. 84 N.Y. Jur. 2d Pleading § 86 (citing, CPLR § 3012(d); CPLR § 2004; Incorporated Village of Hempstead Community Development Agency v. Karabelas, 185 A.D.2d 296, 586 N.Y.S.2d 282 (2d Dept. 1992); Gelch v. Malrich Realty Corp., 47 A.D.2d 644, 364 N.Y.S.2d 16 (2d Dept. 1975) ; 5 6 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 The Civil Practice Law and Rules permit the court, upon application, to enlarge the time for pleading notwithstanding the prescribed period has already expired. The proper procedure is to make a motion to open the default and to extend the time to plead, rather than to submit a simple motion to extend the time to plead, because the moving party is in default. In those instances where a party attempts to serve a pleading after the statutory time has expired, and the adverse party rejects the pleading as untimely, the defaulting party can seek to be relieved of the default by serving a motion, … to compel the acceptance of the pleading, upon a showing of reasonable excuse for the delay or default. Any such application to the court under the CPLR provision governing extensions of time generally or the CPLR provision governing extension of time to plead to be relieved of a default must be made upon notice. Although the CPLR provision governing extensions of time generally permits an application for an extension to be made before or after the expiration of the time fixed, a motion by a defendant for an extension in which to serve an answer after the expiration of the original answering period must precede the application for a default judgment. 84 N.Y. Jur. 2d Pleading § 88 (citing, CPLR §§ 2004, 2211 and 3012(b)(d); Lo Pinto v. Lo Pinto, 87 A.D.2d 585, 447 N.Y.S.2d 768 (2d Dept. 1982); Borreggine v. Di Ponzio, 10 A.D.2d 811, 197 N.Y.S.2d 856 (4th Dept. 1960); Rait v. Bauer, 121 A.D.2d 704, 504 N.Y.S.2d 144 (2d Dept. 1986); CPLR § 2211; Horowitz v. McDuffie, 199 A.D.2d 758, 605 N.Y.S.2d 463 (3d Dept. 1993); Wrye v. Ciba-Geigy Corp., 92 A.D.2d 341, 461 N.Y.S.2d 910 (3d Dept. 1983)). 21. Second, Defendants waited until Plaintiff received a default judgment. “… We have previously held that a defendant may move for an extension of time to answer, notwithstanding expiration of the original answering period, where, as here, the motion for an extension precedes an application for a default judgment (see, Wrye v. Ciba–Geigy Corp., 92 A.D.2d 341, 343, 461 N.Y.S.2d 910). …” Horowitz v. McDuffie, 199 A.D.2d 758, 605 N.Y.S.2d 463 (3d Dept. 1993). 22. Third, the Defendant has failed to seek the vacature of her default and for leave to submit a late answer so the motion should be denied for that reason alone. It is an error to grant a party relief not set forth in said party’s notice of motion. See, J. A. Valenti Electric Co. v Power Line Constructors, Inc., 123 A.D.2d 604, 506 NYS2d 769 (2d Dept. 1986) (a party is not entitled to relief where it failed to serve notice of motion or notice of cross-motion demanding such relief). See also, Blaikie v Borden Co., 47 Misc 2d 180, 262 NYS2d 8 (1965); Phoenix Enterprises Ltd. Partnership v Insurance Co. of North America, 130 A.D.2d 406, 515 NYS2d 6 7 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 443 (1st Dept. 1987); Kantor v Pavelchak, 134 A.D.2d 352, 520 NYS2d 830 (2d Dept. 1987); Potter v Blue Shield, 216 A.D.2d 773, 629 NYS2d 93 (3d Dept. 1995). 23. Fourth, the Defendant had failed to demonstrate his entitlement to the vacature of his default in timely answering the Plaintiff’s complaint. It is well established that a party seeking to vacate a default in answering is required to demonstrate, through the submission of supporting facts in evidentiary form, both a reasonable excuse for the default and the existence of a meritorious defense. Hageman v. Home Depot U.S.A., Inc., 25 A.D.3d 760, 761, 808 N.Y.S.2d 763 (2d Dept. 2006); Matter of Zrake v. New York City Dept. of Educ., 17 A.D.3d 603, 793 N.Y.S.2d 151 (2d Dept. 2005); Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d 553, 554, 725 N.Y.S.2d 76) (2d Dept. 2001). The Defendant, in her moving papers, has failed to demonstrate either. a. The Defendant Failed to Demonstrate a Reasonable Excuse 24. The Defendant has failed to demonstrate the existence of a reasonable excuse for the Defendant’s default in answering the Plaintiff’s complaint. Additionally, Defendant presents no reasonable excuse for failing to answer or oppose Plaintiff’s Order of reference. 25. As was demonstrated above, itis clear that service was properly effectuated on the Defendant. Thus, the Defendant cannot and does not seek to use failure to serve as a reasonable excuse. 26. Defendant instead claims law office error as a reasonable excuse defaulting, however, at best Defendant’s allegations are vague and ambiguous. 27. Defendant claims to have consulted with an attorney by the name of Louis Asandrov but does not provide a retainer agreement or even a timeline for when she met with the attorney. At most Defendant’s affidavit seems to imply that she met with the attorney around the 7 8 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 time she was served with the amended complaint and that she then sought a deed to the property, which occurred in May 2019. (See Defendant’s Affidavit at paragraph 8). 28. Did Defendant retain Louis Asandrov for the purpose of defending her in the action or to obtain a deed to the property? If so, what was the retainer for? When did she meet with the attorney? What was it that gave Defendant the impression that he would appear or defend her in the action? 29. We are not provided with an affidavit from Louise Asandrov or any admissible evidence to demonstrate law office error in this matter. Defendant fails to establish law office failure as this must be supported by detailed allegations of fact explaining the law office failure. See, Cantor v. Flores, 94 A.D.3d 936, 943 N.Y.S.2d 138 (2d Dept. 2012); In re Esposito, 57 A.D.3d 894, 870 N.Y.S.2d 109 (2d Dept. 2008); Gazetten Contracting, Inc. v. HCO, Inc., 45 A.D.3d 530, 844 N.Y.S.2d 721 (2d Dept. 2007). 30. Defendant’s vague, conclusory and unsubstantiated allegations are insufficient to establish law office failure. See, Id. 31. Additionally, Defendant’s reliance on the order disbarring the attorney is insufficient as the order is in no way connected to this case. Louis Asandrov was also, presumably, an attorney in good standing at the time of the alleged discussions and during Defendant’s time to answer. 32. Here, Defendant claims to be a victim of malpractice but only presents vague uncorroborated hearsay statements. Clearly, Defendant did not properly establish law office failure as a reasonable excuse for his default. 33. Moreover, since Defendants fail to present a reasonable excuse for his default there is no need to determine if he presented a potential meritorious defense. See, Aurora Loan Services, LLC v. Lucero, 131 A.D.3d 496, 14 N.Y.S.3d 707 (2d Dept. 2015); Emigrant Bank v. 8 9 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 Wiseman, 127 A.D.3d 1013, 6 N.Y.S.3d 670 (2d Dept. 2015); Tribeca Lending Corp. v. Correa, 92 A.D.3d 770, 938 N.Y.S.2d 599 (2d Dept. 2012). 34. Here, the Court can properly deny Defendant’s motion to vacate based on the showing of proper service of process and for failure to present a reasonable excuse in failing to answer the complaint and failing to oppose Plaintiff’s Motion for Order of Reference. The Court need not consider the Defendant’s alleged defenses raised. b. Defendant failed to demonstrate a potential meritorious defense. 35. Defendant fails to assert a proposed answer but discusses two potential defenses in her affidavit. Defendant asserts standing and failure to comply with the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020. 36. It is respectfully asserted that Plaintiff has demonstrated a prima facie case and that Defendant failed to present a reasonable excuse or meritorious defense to vacate her default or any basis to vacate the default judgment awarded in the Order. 37. Pursuant to CPLR § 3215 Plaintiff need only show: (1) proof of service of the Summons and Complaint; (2) proof of the facts constituting the claim; and (3) proof of the default. Plaintiff has met this burden. See U.S. Bank Natl. Assn. v Wolnerman, 135 A.D.3d 850, 24 N.Y.S.3d 343 (2d Dept. 2016). 38. Clearly, Plaintiff met its burden when submitting the affidavits of service (see NYSCEF Document #47), the loan documents (see NYSCEF Documents #39-41), and the Affidavit of Daniel Delpesche, Contract Management Coordinator of PHH Mortgage Corporation, acting as servicer and attorney-in-fact for Plaintiff, submitted with Plaintiff’s motion for default judgment Order of Reference (see NYSCEF Documents #49 and 51). (See NYSCEF Documents #38-54 for the exhibits to Plaintiff’s Motion). 9 10 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 39. Nonetheless, Defendant does not even seek to challenge the merits of Plaintiff’s foreclosure action outside of alleging that Plaintiff lacks standing. Here, the Borrowers, do not deny execution of the loan documents, nor do they deny his default under their terms. 40. Accordingly, there is no dispute that the Borrowers executed the note and mortgage that are the subject of this action, nor is there any dispute that the loan is in default. “In a mortgage foreclosure action, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage and the unpaid note, and evidence of the default.” Loancare v. Firshing, 130 A.D.3d 787, 14 N.Y.S.3d 410 (2d Dept. 2015). See also Wells Fargo Bank, N.A. v. Cohen, 80 A.D.3d 573, 915 N.Y.S.2d 569 (2d Dept. 2014). i. Plaintiff has standing 41. Defendant’s allegations as to standing are meritless. The fact is that Plaintiff’s standing is demonstrated, not only with the inclusion of the affidavit supporting Plaintiff’s motion for default judgment and Order of Reference, but also by an assignment of mortgage and by the copy of the note that was annexed to the pleadings and amended pleadings. 42. It is well settled case law that in order to commence a mortgage foreclosure action, the plaintiff must have either a legal or equitable interest in the mortgage. See Countrywide Home Loans, Inc. v. Gress, 68 A.D.3d 709, 888 N.Y.S.2d 914 (2d Dept. 2009); Bank of New York v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532 (2d Dept. 2011); Citimortgage, Inc. v. Rosenthal, 88 A.D.3d 759, 931 N.Y.S.2d 638 (2d Dept. 2011). 43. A plaintiff has standing where it the holder or assignee of the note and the mortgage at the time the action is commenced. Citimortgage, Inc. v. Rosenthal, 88 A.D.3d 759, 931 N.Y.S.2d 638 (2d Dept. 2011); Federal National Mortgage Association v. Youkelsone, 303 A.D.2d 546, 755 N.Y.S.2d 730 (2d Dept. 2003). 10 11 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 44. Once the note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note. See Bank of New York v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532 (2nd Dept. 2011); Mortgage Electronic Registration Systems, Inc. v. Coakley, 41 A.D.3d 674, 838 N.Y.S.2d 622 (2nd Dept. 2007). An “assignment of the debt carries with it the security therefore, even though such security be not formally transferred in writing…” Bank of New York v. Silverberg, 86 A.D.3d 274, 280, 926 N.Y.S.2d 532, 537 (2nd Dept. 2011), citing Smith v. Wagner, 106 Misc. 170, 178 [1919]. 45. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident. US Bank National Assoc. v. Cange, 96 A.D.3d 825, 947 N.Y.S.2d 522 (2d Dept. 2012); Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609, 618 (2d Dept. 2011). 46. Here, the assignment of mortgage dated March 14, 2016, assigned the subject note and mortgage prior to the commencement of the action. (See NYSCEF Document # 41). 47. “[P]laintiff established, prima facie, that it had standing by demonstrating that it had physical possession of the note prior to the commencement of the action, as evidenced by its attachment of the note to the summons and complaint at the time the action was commenced.” See, Deutsche Bank Nat. Trust Co. v. Logan, 146 A.D.3d 861, 862 45 N.Y.S.3d 189 (2d Dept. 2017); See also, Deutsche Bank Nat. Trust Co. v. Umeh, 145 A.D.3d 497 (2nd Dept. 2016); Nationstar Mortg., LLC v. Weisblum, 143 A.D.3d 866, 39 N.Y.S.3d 491 (2nd Dept. 2016); Deutsche Bank Natl. Trust Co. v Leigh, 137 A.D.3d 841 (2nd Dept. 2016); JPMorgan Chase Bank, N.A. v Weinberger, 142 A.D.3d 643 (2nd Dept. 2016); Nationstar Mtge., LLC v. Catizone, 127 A.D.3d 1151, 1152 (2d Dept. 2015). 11 12 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 48. In this case, the complaint contained a copy of the original endorsed note, the recorded mortgage and recorded assignment of mortgage. Therefore, Plaintiff established standing as holder of the note and mortgage. (See NYSCEF Documents #1, #2, #11 and #12). ii. Plaintiff is not in violation of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 49. This is not a defense to a foreclosure action as the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 directed the courts, not plaintiff’s counsel, lenders or servicers, to mail out hardship declarations in pending matters. (A copy of the December 31, 2020, March 15, 2021 and May 24, 2021 Memorandums from the Hon. Lawrence K. Marks are annexed hereto as Exhibit “1”. 50. Nonetheless, Defendant’s allegation appear to be moot and of no consequence as Plaintiff has not moved towards judgment after the enactment of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and because Defendant has filed her hardship declaration staying this action through August 31, 2021. iii. Seeking Loss Mitigation is not a defense to a foreclosure action and Defendant is not entitled to an Order scheduling settlement conferences 51. In so far as Defendant is seeking loss mitigation, the allegations are not a defense to foreclosure. Nor does sympathy provide a basis to alter the terms of the mortgage and note. It has long been held that sympathy does not provide a basis to alter contractual obligations. Key Intern. Mfg Inc. v. Stillman, 103 A.D.2d 475, 480 N.Y.S.2d 528 (2nd Dept. 1984) 52. As Defendant is now the owner of the property, she can submit an application seeking to assume the liability of the loan and to modify the loan. Defendant can also seek alternative forms of settlement. 12 13 of 16 IndexNO. INDEX #: 000934-2017 000934-2017 FILED: LIVINGSTON COUNTY CLERK 07/06/2021 05:36 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/06/2021 53. Nonetheless, she is not entitled to an order scheduling settlement conferences as Plaintiff has already satisfied CPLR 3408 when appearing for the settlement conference on December 12, 2018 (See NYSCEF Document # 18). 54. Defendant also obtained ownership interest well after the matter was removed from the settlement conference part. 55. Moreover, this action is also stayed through August 31, 2021 due to the hardship declaration and Plaintiff’s matter is also currently on hold for loss mitigation review. 56. In this regard Defendant is not entitled to an order setting this matter down in the settlement conference part because the matter is stayed. 57. Finally, Defendant is not the obligor and has defaulted in this action. As previously discussed, Defendant fails to present a reasonable excuse or meritorious defense to vacate her default. As a defaulted defendant, she is not entitled to affirmative relief, such as an order placing this matter in the settlement conference part. 58. Nonetheless, Defendant can continue to pursue loss mitigation options but Plaintiff should be able to proceed with the foreclosure once the stay concludes, assuming the matter does not settle. IV CONCLUSION 59. Defendant is not entitled to vacate the default judgment awarded in the Order and is not entitled to an order vacating her default in answering the complaint or for leave to serve an answer, even assuming arguendo, that Defendant made such a request. 60. Defendant presents a vague reasonable excuse involving a disbarred attorney but fails to present the court with an affidavit or admissible evidence to support a law office error claim. Defend