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`R*.C*.IV*.D \IYSCEF:
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`
`IBJNOOZL
`
`BANK OF NEW YORK MELLON F/K/A THE
`BANK OF NEW YORK AS TRUSTEE ON AFFIRMATION IN SUPPORT
`BEHALF OF
`THE HOLDERS OF
`THE OF PLAINTIFF'S MOTION FOR
`ALTERNATIVE
`LOAN
`TRUST
`2007-5CB SUMMARY JUDGMENT AND
`MORTGAGE PASS-THROUGH CERTIFICATES AN ORDER OF REFERENCE
`SERIES 2007-5CB,
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`-vs-
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`Plaintiff,
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`Index No. 707326/2016
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`SHULLA G. JOSEPH; MARTIN W. JUTE; NEW Motion Sequence: 001
`YORK STATE DEPARTMENT OF TAXATION
`AND FINANCE; "JOHN DOE # 1" through "JOHN Justice Assigned: Honorable Howard
`DOE # 12," the last twelve names being fictitious G. Lane J.S.C.
`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,
`Defendants.
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`LISA M. BROWNE, ESQ., affirms under penalties of perjury the truth of the following:
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`1.
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`1 am an attorney in the law firm of Fein, Such & Crane, LLP, attorneys of record
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`for the Plaintiff in this action and am duly admitted to practice law in the State of New York.
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`STATEMENT OF FACTS AND PROCEDURAL HISTORY
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`2.
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`THAT this action is brought to foreclose a Mortgage dated January 17, 2007,
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`covering real property located at 114-77 175TH PLACE, JAMAICA, NY 11434, executed by
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`SHULLA G.
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`JOSEPH and MARTIN W.
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`JUTE to MORTGAGE ELECTRONIC
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`REGISTRATION SYSTEMS, INC, AS NOMINEE FOR FRANKLIN FIRST FINANCIAL,
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`LTD, to secure a sum of $395,000.00, which Mortgage was recorded in the Office of the City
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`Register of the City of New York on March 15, 2007, in Official Record CRFN 2007000139719.
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`Said Mortgage was further assigned by MORTGAGE ELECTRONIC REGISTRATION
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`SYSTEMS, INC. AS NOMINEE FOR FRANKLIN FIRST FINANCIAL, LTD to THE BANK
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`OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS TRUSTEE FOR THE
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`FILED: OUEENS COUNTY CLERK 09E2017 03:08 PM
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`CERTIFICATEHOLDERS OF CWALT, INC, ALTERNATIVE LOAN TRUST 2007-5CB,
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`MORTGAGE PASS—THROUGH CERTIFICATES, SERIES 2007-5CB, by Assignment of
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`Mortgage dated, May 17, 2011, and recorded in the Office of the City Register of the City of
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`New York on June 2, 2011, in Official Record CRFN 201 1000196094.
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`3.
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`THAT prior to the commencement of this action:
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`a)
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`On November 12, 2014, the sole Borrower, SHULLA G. JOSEPH, was
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`served with a Notice of Default and Intent to Foreclose. Plaintiff refers the
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`Court to Paragraph 7 of and Exhibit C to the August 22, 2017 Affidavit In
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`Support of Summary Judgment of KELl SMITH.
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`b)
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`On October 7, 2015, Defendants, SHULLA G. JOSEPH and MARTIN W.
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`JUTE, were served with 90 day Pre-Foreclosure Notices. Plaintiff refers
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`the Court
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`to Paragraph 8 of and Exhibit D to the August 22, 2017
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`Affidavit In Support of Summary Judgment of KELI SMITH.
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`4.
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`THAT this action has proceeded as follows:
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`a)
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`The Summons, Complaint and Certificate of Merit were filed in the Office
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`of the Clerk of QUEENS County on June 22, 2016. See Exhibit “A”
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`attached hereto.
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`b)
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`The Notice of Pendency was filed in the Office of the Clerk of QUEENS
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`County on June 22, 2016. See Exhibit “B” attached hereto.
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`c)
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`Service of the Summons and Complaint was made upon all necessary
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`Defendants and the Affidavits of Service thereof were duly filed in the
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`Office of the Clerk of QUEENS County, date stamped copies of which are
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`attached hereto as Exhibit “C”.
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`FILED: OUEENS COUNTY CLERK 09E2017 03:08 PM
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`d)
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`On July 28, 2016 SHULLA G. JOSEPH and MARTIN W. JUTE, Pro Se,
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`served an Answer to the Complaint, Counterclaims and Cross Claims, a
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`copy of which is attached hereto as Exhibit “D”.
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`e)
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`On August 10, 2016, a Consent to Change Attorney was served on behalf
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`of Plaintiff substituting Fein, Such, Kahn & Shepard, P.C., in the place
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`and stead of RAS Boriskin, LLC. A copy of the Consent to Change
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`Attorney is attached hereto as Exhibit “E”.
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`D
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`On August 10, 2016, Plaintiff served a Verified Reply to Counterclaims
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`and Cross-claims, by both Fein, Such, Kahn & Shepard PC, and through
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`its prior attorney, RAS Boriskin, LLC, copies of which are collectively
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`attached hereto as Exhibit “F”.
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`5.
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`THAT said filed Notice of Pendency of this action, was in the form prescribed by
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`statute and containing, as your affirmant believes, correctly, all the particulars required by law to
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`be stated in such notice, was filed in the Office of the Clerk of QUEENS County, that being the
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`County in which the mortgaged premise is situated; and that since the filing of the said notice,
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`the verified complaint in this action has not been amended by making new parties to this action,
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`or so as to affect other property not described in the original complaint, or so as to extend the
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`claims of the Plaintiff as against the mortgaged premises.
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`6.
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`THAT all of the said Defendants are of full age; that none of the Defendants are
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`in the armed services of the United States of America.
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`7.
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`THAT none of the Defendants are of unsound mind and that none of the
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`Defendants, who have not appeared, are absentees.
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`8.
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`THAT the time of the Defendants to appear, answer or otherwise move, with
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`respect to the complaint has expired and has not been extended by stipulation, order of the Court
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`or otherwise, and that none of the Defendants has appeared or answered the complaint, except
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`for as set forth above and Plaintiff is entitled to judgment by default against Defendant, NEW
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`YORK STATE DEPARTMENT OF TAXATION AND FINANCE.
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`9.
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`THAT the attached Affidavits of Service show that the name of the occupant(s)
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`of the subject property, as provided to the process server at time of service, are J OANN "DOE"
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`and request is therefore made that this name be substituted in the caption of this action in the
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`place and stead of "JOHN DOE #1" without prejudice to any of the proceedings heretofore had
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`herein.
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`10.
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`THAT Defendants captioned as "JOHN DOE #2" through "JOHN DOB #12"
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`were not served with copies of the summons and complaint and are not necessary party
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`Defendants. Request is therefore made that said Defendants be excised from the action and from
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`the caption of the action without prejudice to any of the proceedings heretofore had herein.
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`1 1.
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`THAT The Summons and Complaint, printed on white paper, together with the
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`Notice required by RPAPL 1303, printed on a different colored paper than that of the summons
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`and complaint was served as can be seen from the affidavit of service attached hereto. The
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`process server effected service upon the mortgagor(s) with the complaint copy of the notification
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`pursuant to RPAPL 1303. An exact photocopy of said Notice is attached hereto, evidencing that
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`the title of the Notice is in bold, 20-point font, the text of the Notice is in bold 14-point font, it
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`was on its own page and it was served with the Summons and Complaint.
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`12.
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`THAT the mortgagors were served with additional notice of summons in
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`compliance with CPLR 3215(g)(3), a copy of which is attached hereto as part of Exhibit "C".
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`OUEENS COUNTY CLERK 09m2017 03:08 PM
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`FILED:
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`3F DOC. NO. 37
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`SUMMARY JUDGMENT
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`13.
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`THAT Defendants’ allegation of a lack of standing to foreclose is not a fact
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`generally known of which judicial notice may be taken. "The matters of which judicial notice
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`may be taken are those which
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`are of such general and public notoriety that every one may
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`fairly be presumed to be acquainted with them." Wood v. Northwestern Ins. Co., 46 NY. 421,
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`**7 (1871).
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`VALIDITY OF NOTE ENDORSEMENT AND THE MERS MORTGAGE
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`14.
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`Here, Defendants deny the validity of both (1) the endorsement to the Note, and
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`(2) the Assignment of Mortgage from MERS into the Plaintiff. Firstly, the indorsement in blank
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`presents no issue that would preclude summary judgment for the Plaintiff. The indorsement is
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`“signed” as same is defined in the UCC, specifically NY CLS UCC sec. 1-201(37). Only a
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`symbol is required, and it may be printed, stamped or written. E. Further, it is the authority to
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`indorse, and not
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`the physical act of indorsement,
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`that determines the validity of such
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`indorsement. An authorization to sign a document may be implied from surrounding
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`circumstances. Collins v. Widger, 231 App. Div. 321, 323 (1931).
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`15.
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`Secondly, the existence of a MERS Assignment in the assignment chain is no
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`legal impediment to Plaintiff‘s standing to foreclose in this case. Deutsche Bank National Trust
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`Company as Trustee v. Pietranico, 928 N.Y.S.2d 818 (Suffolk County 20]1).Indeed, as a matter
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`of law, the assignment of the Note was effectuated by physical delivery of the Note prior to the
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`commencement of the action and the Mortgage was validly assigned by MERS, which
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`assignment is validly reflected in the public records. Bank of New York Mellon Trust Company
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`NA v Sachar, 943 N.Y.S.2d 893 (First Dept. 2012).
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`In any event, by the very terms of the
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`Mortgage itself, Defendants granted MERS the authority to assign the Mortgage. US. Bank NA.
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`FILED: OUEENS COUNTY CLERK 09E2017 03:08 PM
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`v. Norgg'ff, 15 NYS 3d 803 (2nd Dept. 2015). Finally, it is settled law that any disparity between
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`the holder of the Note and the mortgagee of record does not stand as a bar to a foreclosure action.
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`Aurora Loan Services LLC v. Taylor, 25 NY3d 355, 362 (2015). This Defense is without merit.
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`16.
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`Further, The Court in Deutsche Bank National Trust Company v. Musco, 2012
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`N.Y.Misc LEXIS 4450, when faced with an attack on the validity of a MERS assignment of
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`mortgage by the defendant borrower found as follows:
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`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 [*9] delivery to Deutsche Bank (see,
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`LaSalle Bank NA. 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 at N)’. v. Silverberg, supra). Thus,
`the proposed
`defenses and counterclaims challenging, e.g.,
`the validity of the written
`assigmnent of mortgage by MERS, are devoid of merit.
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`17.
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`This Court should adopt the same sensible reasoning as the court in m, supra.
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`As a matter of law, the assignment of the Note was effectuated by physical delivery of the Note
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`prior to the commencement of the action and the Mortgage was validly assigned by MERS to
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`Plaintiff, which assignment is validly reflected in the public records. Bank of New York Mellon
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`Trust Company NA v Sachar, 943 N.Y.S.2d 893 (First Dept. 2012).
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`In any event, by the very
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`terms of the Mortgage itself, the borrower Defendant granted MERS the authority to assign the
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`Mortgage. U.S. Bank NA. v. Norgrjff, 15 NYS 3d 803 (2“d Dept. 2015). These Defendants do
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`not even have standing to challenge the mortgage assignment in the first instance. Fannie Mae v.
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`Youkelsone, 303 AD. 2d 546 (2mI Dept 2003). Finally,
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`it
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`is settled law that any disparity
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`between the holder of the Note and the mortgagee of record does not stand as a bar to a
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`foreclosure action. Aurora Loan Services LLC v. Taylor, supra.
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`18.
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`The Assignment is a redundant distraction, since Plaintiff had possession of the
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`original Note indorsed in blank and Mortgage by delivery and therefore has standing. Defendant
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`does not have standing to challenge the mortgage assignment in the first instance. Fannie Mae v.
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`Youkelsone, 303 AD. 2d 546 (2“d Dept 2003).
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`THE MORTGAGE DEFAULT
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`19.
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`THAT SHULLA G. JOSEPH and MARTIN W. JUTE defaulted under the terms
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`of the Note and Mortgage for failure to pay the January 1, 2010 payment and all subsequent
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`payments accruing thereafter. Defendants have not and cannot show proof of sufficient tender to
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`defeat Plaintiff‘s right
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`to have accelerated the debt and commenced the present action.
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`Accordingly, Defendants do not appear to have a meritorious defense to the foreclosure action
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`and Summary Judgment is warranted.
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`PLAINTIFF’S PRIMA FACIE CASE FOR FORECLOSURE
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`20.
`
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`General denials are insufficient to defeat a motion for summary judgment. Stern
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`M, 87 A.D.2d 887 (2“ Dept 1982); Pathmark Graphic v. J.M. Fields Inc. , 53 A.D.2d 531
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`(lSt Dept. 1976) Defenses that merely plead conclusions of law without supporting facts are
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`insufficient and fatally deficient. Becher v Feller, 884 N.Y.S. 2d 83 (2"d Dept 2009). Plaintiff
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`has made out a prima facie entitlement to foreclosure, as it has submitted proof of the Mortgage
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`and Note and of Defendant’s default in payment. Citidress 11 v 207 Second Avenue Realty Corp,
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`21 A.D.3d 774, 802 N.Y.S. 2d 393 (2005); Flagstar Bank v Bellafiore, 943 N.Y.S. 2d 551 (2nd
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`Dept 2012); HSBC Bank USA NA v. Schwartz, 931 N.Y.S. 2d 528 (2nd Dept 2011). Plaintiff
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`has established its entitlement to judgment as a matter of law. JPMgrgan Chase Bank NA. v
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`Agnello, 878 N.Y.S. 2d 397 (2"(1 Dept 2009).
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`FILED: OUEENS COUNTY CLERK 09m2017 03:08 PM
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`NYSCEF DOC. NO. 37
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`PLAINTIFF HAS COMPLIED WITH RPAPL § 1304
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`2].
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`THAT Plaintiff has complied with all applicable provisions of the RPAPL
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`Section 1304 and Banking Law, and specifically with Banking Law § 595-a and 6-1 and 6-m if
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`applicable,
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`in securing the aforementioned indebtedness and at all
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`times thereafter.
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`In
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`accordance with RPAPL Section 1304, a 90 day notice was sent to the borrower at least 90 days
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`ago but within the last 12 months. The 90 day notice was sent at least 90 days before the
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`commencement of this foreclosure action. Further, the notice under RPAPL Section 1304 was
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`in 14-point type, contained the statutorily dictated language and the addresses and phone
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`numbers of at least five US Department of Housing and Urban Development approved housing
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`counseling agencies in the region where the borrower resides and was mailed by registered or
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`certified mail and first class mail to the last known address of the borrower. Plaintiff has fully
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`and completely complied with the RPAPL Section 1304. Further, Plaintiff has complied fully
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`with RPAPL Section 1306 filing requirements in that the filing with the superintendent was
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`completed within three (3) business days of the mailing.
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`THE AFFIRMATIVE DEFENSES HAVE NO MERIT
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`22.
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`THAT Defendants raise as a FIRST AFFIRMATIVE DEFENSE that Plaintiff lacks
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`standing due to a “defective MERS Assigmnent” in that MERS did not have authority to Assign
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`the mortgage note. Plaintiff refers to paragraph 14, above. As a matter of law, the assignment
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`of the Note was effectuated by physical delivery of the Note prior to the commencement of the
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`action and the Mortgage was validly assigned by MERS, which assignment is validly reflected
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`in the public records. Bank of New York Mellon Trust Company NA v Sachar, 943 N.Y.S.2d
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`893 (First Dept. 2012).
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`23.
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`In conjunction with Defendants claim that the Assignment of Mortgage is invalid,
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`Defendants assert that the assignment is fatally defective as being executed by a “known robo-
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`signer”. The Assignment is a redundant distraction, since Plaintiff had possession of the original
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`Note indorsed in blank and possession of the Mortgage by delivery. The Assignment is not an
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`Aflidavit, sworn to on personal knowledge of the party signing same. There is no fraud. Period.
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`Grullon v. Bank of America N.A., 2013 U.S.Dist. LEXIS 48394 (D.N.J. 2013); In Re Samuels,
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`415 BR. 8, 21 (Bankr. D. Mass 2009); Buoy v Aurora Loan Services LLC, 2011 U.S.Dist.
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`LEXIS 2819] (SD. Ohio 2011). Further, Defendants do not have standing to challenge the
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`mortgage assignment in the first instance. Fannie Mae v. Youkelsone, 303 AD. 2d 546 (2“d Dept
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`2003).
`
`24.
`
`THAT Defendants raise as a SECOND AFFIRMATIVE DEFENSE that the
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`Plaintiff lacks standing. This claim fails. First, Plaintiff has established it’s standing through the
`
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`KELI SMITH Affidavit. To that end, our Court of Appeals held in Aurora Loan Servs. LLC v.
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`Taylor, 25 N.Y.3d 355, 361 (2015), that a Plaintiff establishes standing by producing evidence
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`on a physical delivery of the Note to the foreclosing Plaintiff.
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`Here, the KELI SMITH Affidavit provides that:
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`Plaintiff is in possession of the original Note and was in possession of
`same at the time this action was commenced.
`Plaintiff, through prior
`servicer, Select Portfolio Servicing, verified possession of the original
`Note on June 20, 2016. A copy of said original Note, along with a copy of
`the particular business records that I reviewed and relied upon, maintained
`as described above and evidencing and confirming the date of Plaintiff‘s
`possession of the original Note, is annexed hereto as Exhibit “A”.
`
`25.
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`Accordingly, the KELI SMITH Affidavit establishes “physical possession of the
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`note on a date certain [] prior to the commencement of the action.” OneWest Bank FSB v
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`Simpson, ___AD3d__, 2017 NY Slip Op 01875, *2 (2d Dep’t March 15, 2017). This, on its
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`own, demonstrates Plaintiff s standing to foreclose.
`
`26.
`
`Second, Plaintiff‘s attachment of a copy of the original Note to the Complaint
`
`establishes prima facie possession of the Note. See Nationstar Mtge, LLC v Catizone, 127 AD3d
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`1151, 1152 (2"d Dept 2015). As evidenced by Exhibit “A” annexed hereto, Plaintiff has
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`established “standing as the holder of the note and mortgage by demonstrating that the note was
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`in its possession and the mortgage had been assigned to it prior to the commencement of the
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`action, [by attaching the] endorsed note,
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`[] mortgage, and... assignment to the summons and
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`complaint.”
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`27.
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`Furthermore, Defendants also claim that Plaintiff is not the holder in due course.
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`As stated above, however, Plaintiff is the current holder of the Note and Mortgage sought to be
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`foreclosed. To have standing, Plaintiff need only be the holder of the Note and Mortgage.
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`Defendant is simply wrong. Further, defenses that merely plead conclusions of law without
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`supporting facts are insufficient and fatally deficient. Becher v Feller, 884 NYSZd 83 (2nd Dept
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`2009). Thus, this defense must be dismissed as there is no question that Plaintiff has standing to
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`foreclose.
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`28.
`
`Defendants contend that Plaintiff and/or its assignees have failed to properly
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`securitize said obligation pursuant to New York State Law and or have acted contrary to and in
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`violation of a pooling and servicing agreement related to this loan. As a matter of law, a third
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`party lacks standing to raise an alleged violation of a PSA and noncompliance with the terms of a
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`PSA is irrelevant to the validity of the assignment or transfer of the loan. See, Abubo v. Bank of
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`New York Mellon, 201 1 US. Dist. LEXIS 138408 (US. Hawaii 201 1) and the cases quoted and
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`cited therein.
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`OUEENS COUNTY CLERK 09m2017 03:08 PM
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`29.
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`New York law is consistent with the foregoing. As the Court in Artwcar Inc. v
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`Hughes, 615 N.Y.S.2d 689, 693 (15‘ Dept 1994) stated:
`
`Only an intended beneficiary of a contract may maintain an action as a third party;
`an incidental beneficiary may not.
`(Alicea v City [*82] ofNew York, 145 AD2d
`315, 317.) In order for a contract to confer enforceable third-party beneficiary
`rights, it must appear "that no one other than the third party can recover if the
`promisor breaches the contract" or the contract language should otherwise clearly
`evidence "an intent to permit enforcement by the third party." ( Fourth Ocean
`[***9] Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 45.)
`
`30.
`
`“Inasmuch as the defendant...is not a party to the contract or an intended third-
`
`party beneficiary of the contract, he does not have standing to bring a claim under the contract.”
`
`
`See HSBC Bank USA N.A. v Baksh, 34 Misc. 3d 1242(A); 950 N.Y.S.2d 608 (Queens Co. Sup.
`
`Ct. 2012). See also Financial Freedom Acguisition LLC v. Havemeye , 2013 NY Slip Op
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`33089(U); 2013 NY. Misc. LEXIS 5741; (holding that those without privity of contract or
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`without third—party beneficiary status cannot assert defenses or claims under the contract).
`
`31.
`
`The fact is, as a matter of New York law, Defendants have no rights whatsoever
`
`under the PSA, real or imagined. See, Tran v Bank of New York, 2014 US. Dist LEXIS 4026]
`
`(S.D.N.Y. 2014); 767 Third Avenue LLC v ORIX Capital Markets LLC, 812 N.Y.S. 2d 8 (First
`
`Dept. 2006). This Defense is frivolous.
`
`32.
`
`THAT Defendants raise as a THIRD AFFIRMATIVE DEFENSE, that Plaintiff
`
`has no legal capacity to sue. The defense fails to assert exactly how Plaintiff lacks capacity.
`
`Thus, the defense is 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 (2nd Dept 2009).
`
`See also, G.G.F. Dev. Corp. v.
`
`Andreadis, 251 A.D.2d 624; 676 N.Y.S.2d 488 (2"d Dep’t 1998) (holding that a vague assertion
`
`that the assignment of a mortgage violated Judiciary Law Sec. 489 was insufficient to raise a
`
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`triable issue of fact). Business Corporation Law Sec. 202(a)(2) authorizes a corporation to sue
`
`and be sued in all Courts within the statue. Further, Business Corporation Law Sec. 1313 permits
`
`a foreign corporation to maintain an action in the same manner permitted by a domestic
`
`corporation. Thus, Plaintiff has capacity to commence and maintain the instant proceeding.
`
`33.
`
`THAT Defendants raise as a FOURTH AFFIRMATIVE DEFENSE that the
`
`Complaint herein fails to state a claim upon which relief may be granted. However, a review of
`
`the Complaint and the exhibits annexed thereto illustrates that Defendants entered into a
`
`Mortgage agreement with Plaintiff's predecessor, and that Defendants defaulted on the monthly
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`payment obligations thereunder. The foregoing is sufficient
`
`to establish entitlement
`
`to a
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`Judgment of Foreclosure as a matter of law. 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. Bentivegga v. Meenan Oil Co., 510 NYSZd 626 (2nd Dept 1987); Bank of America
`
`NA v. Rodomista, l8 NYS3d 577 (Suffolk County 2015).
`
`34.
`
`THAT Defendants raise as a FIFTH AFFIRMATIVE DEFENSE that there is no
`
`privity of contract between Plaintiff and Defendants. This defense is also without merit. Privity is
`
`established by the Note and Mortgage, and by way of Plaintiff holding said Note and Mortgage
`
`when the action was commenced. See Onewest Bank, FSB v Kallergis, 2013 NY Slip Op
`
`31990(U) **7, 2013 NY. Misc. LEXIS 3803 (Queens Co. Sup. Ct. 2013). “The mortgage and
`
`note bear [defendant’s] signature and defendant...is a named party to the mortgage. Plaintiff was
`
`the holder of the note, endorsed in blank and without recourse, at the time of the commencement
`
`of the action, as evidenced by the annexing of the note so endorsed, to the complaint. Plaintiff
`
`therefore is a proper party with has standing to commence this foreclosure action.” Internal
`
`citations omitted. This defense is without merit and should be stricken in its entirety.
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`35.
`
`THAT Defendants raise as a SIXTH AFF IRMATlVE DEFENSE that Plaintiff
`
`failed to join a necessary party to this action. Defendants fail to identify the party who has not
`
`been joined, and has failed to specify in what way this party is necessary to the instant action.
`
`Defenses that merely plead conclusions of law without supporting facts are insufficient and
`
`fatally deficient. Becher v Feller, 884 NYSZd 83 (2nd Dept 2009). Further, a purported failure to
`
`join a necessary party is not a viable defense to foreclosure. See E*Trade Bank v Macpherson,
`
`2013 NY Slip Op 30414(U); 2013 NY. Misc. LEXIS 794 (Suffolk Co. Sup. Ct. 2013);
`
`Amalgamated Bank v. Fort Tryon Tower SPE LLC, 2011 NY Slip Op 33461(U); 2011 NY.
`
`Misc. LEXIS 6287 (NY Sup. Ct. 2011). “The absence of a necessary party in a mortgage
`
`foreclosure action simply leaves that party's rights unaffected by the judgment of foreclosure and
`
`sale.” (Glass v. Estate of Gold, 48 A.D.3d 746, 747; 853 N.Y.S.2d 159 (2"d Dep’t 2008). This
`
`defense is wholly without merit and should be stricken. This Defense is without merit.
`
`36.
`
`THAT Defendants raise as a SEVENTH AFFIRMATIVE DEFENSE and
`
`FOURTH COUNTERCLAIM that Plaintiff and or its predecessors in interest have clouded
`
`Defendant’s title to real property.
`
`This is nonsense. Defendant fails to allege any facts
`
`establishing that Plaintiff is not entitled to enforce the Note and Mortgage. Defendant does not
`
`deny executing the Mortgage or allege what party is properly entitled to enforce the Mortgage.
`
`At best, this is simply a repackaging of the Defendant’s conclusory and deficient claim that
`
`Plaintiff lacks standing. As set forth in detail above, Plaintiff is the holder of the Note and
`
`Mortgage and has standing.
`
`37.
`
`In Barberan v. Nationpoint, 706 F Supp 2d 408, 418 (SDNY 2010), the Court
`
`described the elements that a party must establish to sustain a cause of action to quiet title:
`
`“To maintain an equitable quiet title claim, a plaintiff must allege actual or
`constructive possession of the property and the existence of a removable "cloud"
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`on the property, which is an apparent title, such as in a deed or other instrument,
`that is actually invalid or inoperative...
`
`If the allegations are made pursuant
`
`to RPAPL Article 15, rather than pursuant
`
`to
`
`common law, the:
`
`[C]omplainant must adequately describe the property and [] allege: (i) the nature
`of the plaintiff‘s interest in the real property and the source of this interest; (ii) that
`the defendant claims or appears to claim an interest in the property adverse to the
`plaintiff‘s interest, and the nature of the defendant‘s interest; (iii) whether any
`defendant is known or unknown and whether any defendant is incompetent; and
`(iv) whether all interested parties are named and whether the judgment will or
`might affect other persons not ascertained at the commencement of the action.
`Id. at 4] 9.
`
`Here, the Defendant utterly fails to allege either a common law quiet title cause of action or a
`
`statutory quiet title cause of action. The Counterclaim meets none of the above described legal
`
`requirements. This counterclaim is entirely without merit.
`
`38.
`
`THAT Defendants raise as an EIGHTH AFFIRMATIVE DEFENSE that the
`
`Note and Mortgage have been separated and that the chain of title is broken. Defendants offer no
`
`evidence that the loan instruments have been separated. Regardless, the Assignment is a
`
`redundant distraction, since Plaintiff had possession of the original Note indorsed in blank, and
`
`possession of the Mortgage by delivery, and therefore has standing. Furthermore, Defendant
`
`does not have standing to challenge the mortgage assigmnent in the first instance. Fannie Mae v.
`
`Youkelsone, 303 A.D.2d 546 (2"(1 Dept 2003).
`
`39.
`
`THAT Defendants raise as a NINTH AFFIRMATIVE DEFENSE that the
`
`Defendants demands credit “for any and all collateral source payments”. This Defense is
`
`frivolous. Generally, New York followed the common law rule that jury verdicts in personal
`
`injury actions cannot be reduced by the amount of payments made to a plaintiff from collateral
`
`sources. Firmes v. Chase Manhattan Automotive Fin. Corp, 50 A.D.3d 18, 20 (App. Div 2008).
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`OUEENS COUNTY CLERK 09m2017 03:08 PM
`FILED: QUEENS COUNTY CLERK 09/22/2017 03:08 PM
`FILED:
`NYSCI
`3F DOC. NO. 37
`NYSCEF DOC. NO. 37
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`The collateral source rule was codified in CPLR 4545 which by its own express terms applies
`
`only to actions for personal injury, property damage and wrongful death. The collateral source
`
`rule is very limited in application in New York and has no applicability whatsoever to
`
`foreclosure actions. None.
`
`40.
`
`THAT Defendants raise as a TENTH AFFIRMATIVE DEFENSE that
`
`Defendants deny the authenticity of any uncertified “duplicate” (COPY) alleged to be the Note
`
`and Mortgage. Plaintiff was, at the time this action was commenced, the holder of the Note,
`
`having possessed the original Note endorsed in blank. A copy of the original Note indorscd in
`
`blank is attached to the Complaint. This face alone is sufficient to afford Plaintiff standing.
`
`Nationstar Mtge. v. Catizonc, 127 A.D.3d 1151, 9 N.Y.S. 3d 315 (2nd Dept 2015). Indeed, the
`
`Plaintiff‘s attachment of a copy of the original Note to the Complaint establishes prima facie
`
`possession of the Note. Emigrant Bank v. Lan'zza, 129 A.D.3d 904, 13 N.Y.S.3d 129 (2"‘1 Dept
`
`2015).
`
`41.
`
`The fact is, as a matter of law, if the Plaintiff‘s attorney has the Note and
`
`attaches a copy of same to the Complaint, Plaintiff has standing. PennyMac Com. v. Chavez,
`
`2016 NY Slip Op 07938 (2"‘1 Dept. 2016); JPMor an Chase Bank Nat. Assn. v. Weinber er, 142
`
`AD. 3d 643, 645, 37 N.Y.S.3d 286 (2nd Dept. 2016).
`
`42.
`
`THAT Defendants raise as an ELEVENTH AFFIRMATIVE DEFENSE that
`
`Plaintiff did not send a 90 Day Prc Foreclosure Notice prior to initiating suit. The requisite 90
`
`day Notice were duly sent to Defendants. Plaintiff refers the Court to paragraph 8 of and Exhibit
`
`D to the Affidavit
`
`in Support of KELI SMITH. The law presumes that a letter properly
`
`addressed, stamped