FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08312017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF ROCKLAND
`
`VERNY53O
`
`US. BANK TRUST, N.A., AS TRUSTEE FOR
`
`LSF9 MASTER PARTICIPATION TRUST,
`
`AFFIRMATION IN SUPPORT
`OF PLAINTIFF'S MOTION FOR
`
`Plaintiff,
`
`SUMMARY JUDGMENT AND
`AN ORDER OF REFERENCE
`
`—VS_
`
`MARIANO IRIARTE; ANA IRIARTE A/K/A ANA Index No. 031383/2016
`
`M. IRIARTE; BENEFICIAL HOMEOWNER
`
`SERVICE CORPORATION; JPMORGAN CHASE
`
`BANK, N.A.; WESTERN NEW ENGLAND
`
`COLLEGE; COMMISSIONER OF TAXATION
`
`AND FINANCE; UNITED STATES OF
`AMERICA INTERNAL REVENUE SERVICE
`
`CCP LIEN UNIT;"JOHN DOE #1-5" and "JANE
`
`DOE #1-5" said names being fictitious, it being the
`intention of Plaintiff to designate any and all
`occupants, tenants, persons or corporations, if any,
`having or claiming an interest in or lien upon the
`premises being foreclosed herein,
`
`Defendants.
`
`MONICA G. CHRISTIE, ESQ, affirms under penalties of perjury the truth of the
`
`following:
`
`1.
`
`I am an attorney in the law firm of Fein, Such & Crane, LLP, attorneys of record for
`
`the Plaintiff in this action and am duly admitted to practice law in New York State.
`
`FACTS AND PROCEDURAL HISTORY
`
`2.
`
`THAT this action is brought to foreclose a mortgage dated July 31, 2007, covering
`
`real property located at , 15 CARDINAL LANE, CHESTNUT RIDGE, NY 10977-6133, executed
`
`by MARIANO IRIARTE and ANA IRIARTE to BENEFICIAL HOMEOWNER SERVICE
`
`10f 15
`1 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08312017 02:35 PM
`
`NYSCI
`3F DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`CORPORATION to secure the sum of $292,498.02, which was recorded in the ROCKLAND
`
`County Clerk's Office on August 9, 2007 in Instrument Number 2007-00040719. Said Mortgage was
`
`assigned by BENEFICIAL HOMEOWNER SERVICE CORPORATION to US. BANK TRUST,
`
`NA. AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST by Assignment dated
`
`December 23, 2015 and recorded on January 15, 2016 in Instrument Number 2016-00001541.
`
`3.
`
`THAT this action has proceeded as follows:
`
`a)
`
`The Summons, Complaint and Certificate of Merit were filed in the
`
`ROCKLAND County Clerk’s Office on April 21, 2016. See Exhibit “A”
`
`attached hereto.
`
`b)
`
`The Notice ofPendency was filed in the ROCKLAND County Clerk’ 5 Office
`
`on April 21, 2016. See Exhibit “B” attached hereto.
`
`0)
`
`Service of the Summons and Complaint was made upon all necessary
`
`Defendants and the affidavits of service thereof were duly filed in the
`
`ROCKLAND County Clerk’s Office, date stamped copies of which are
`
`attached hereto as Exhibit “C”.
`
`d)
`
`On or about May 18, 2016, MARIANO IRIARTE and ANA IRIARTE
`
`A/K/A ANA N. IRIARTE, through their attorney, STEVEN W. STUTMAN,
`
`ESQ, served an Answer to the Complaint and Counterclaim, a copy ofwhich
`
`is attached hereto as Exhibit “D”.
`
`e)
`
`On August 22, 201 5, Defendants, MARIANO IRIARTE and ANA IRIARTE,
`
`were served with the Notice of Intent to Foreclose. Plaintiff refers the Court
`
`to Paragraph 7 of and Exhibit C to the August 15, 2017 Affidavit In Support
`
`of Summary Judgment of Romualdo D. Fernandez. Affiant has personal
`
`20f 15
`2 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08E2017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`knowledge of the manner in which the business records of Plaintiff were
`
`created, has personal knowledge of Plaintiff’s business and mailing
`
`procedures, and can attest to the content/service/mailing of said Notice.
`
`t)
`
`On May 15, 2015, Defendants, MARIANO IRIARTE and ANA IRIARTE,
`
`were served with the 90 day Pre-Foreclosure Notice. Plaintiffrefers the Court
`
`to Paragraph 8 of and Exhibit D to the August 15, 2017 Affidavit In Support
`
`of Summary Judgment of Romualdo D. Fernandez. Affiant has personal
`
`knowledge of the manner in which the business records of Plaintiff were
`
`created, has personal knowledge of Plaintiff’s business and mailing
`
`procedures, and can attest to the content/service/mailing of said Notice.
`
`g)
`
`On June 3, 2016, Plaintiff filed a Reply to Counterclaims, a copy of which is
`
`attached hereto as Exhibit “E”.
`
`h)
`
`Defendant, UNITED STATES OF AMERICA,
`
`served a Notice of
`
`Appearance and Waiver in Foreclosure, a copy ofwhich is attached hereto as
`
`Exhibit "F".
`
`4.
`
`THAT said filed Notice of Pendency of this action, was in the form prescribed by
`
`statute and containing, as your affirmant believes, correctly, all the particulars required by law to be
`
`stated in such notice, was filed in the Office ofthe Clerk of the County of ROCKLAND, that being
`
`the County in which the mortgaged premise is situated; and that since the filing of the said notice,
`
`the verified complaint in this action has not been amended by making new parties to this action, or
`
`so as to affect other property not described in the original complaint, or so as to extend the claims
`
`of the Plaintiff as against the mortgaged premises.
`
`5.
`
`THAT all of the said Defendants are of full age; that none of the Defendants are in
`
`30f 15
`3 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08E2017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`the armed services of the United States of America.
`
`6.
`
`THAT none ofthe Defendants are ofunsound mind and that none ofthe Defendants,
`
`who have not appeared, are absentees.
`
`7.
`
`THAT the time ofthe Defendants to appear, answer or otherwise move, with respect
`
`to the complaint has expired and has not been extended by stipulation, order of the Court or
`
`otherwise, and that none of the Defendants has appeared or answered the complaint, except for as
`
`set forth above and Plaintiff is entitled to judgment by default against Defendants, BENEFICIAL
`
`HOMEOWNER SERVICE CORPORATION; JPMORGAN CHASE BANK, N.A.; WESTERN
`
`NEW ENGLAND COLLEGE; COMMISSIONER OF TAXATION AND FINANCE; DANIEL
`
`IRIARTE and MARISA IRIARTE.
`
`8.
`
`THAT the attached affidavits of service show that the name of the occupants of the
`
`subject property, as provided to the process server at time of service, are DANIEL IRIARTE and
`
`MARISA IRIARTE and request is therefore made that this name be substituted in the caption ofthis
`
`action in the place and stead of "JOHN DOE #1 " and "JANE DOE #1 " without prejudice to any of
`
`the proceedings heretofore had herein.
`
`9.
`
`THAT Defendants captioned as "JOHN DOE #2-5" and "JANE DOE #2-5" were
`
`not served with copies of the summons and complaint and are not necessary party Defendants.
`
`Request is therefore made that said Defendants be excised from the action and from the caption of
`
`the action without prejudice to any of the proceedings heretofore had herein.
`
`10.
`
`THAT The Summons and Complaint, printed on white paper, together with the
`
`Notice required by RPAPL 1303, printed on a different colored paper than that of the summons and
`
`complaint was served as can be seen from the affidavit ofservice attached hereto. The process server
`
`effected service upon the mortgagors with the complaint copy ofthe notification pursuant to RPAPL
`
`4of15
`4 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08E2017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD uYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`
`
`1303. An exact photocopy of said Notice is attached hereto, evidencing that the title of the Notice
`
`is in bold, 20—point font, the text of the Notice is in bold 14—point font, it was on its own page and
`
`it was served with the Summons and Complaint.
`
`1 1.
`
`THAT the mortgagors was served with additional notice of summons in compliance
`
`with CPLR 3215(g)(3), a copy of which is attached hereto as part of Exhibit "C".
`
`SUMMARY JUDGMENT
`
`12.
`
`THAT as the attached affidavit on behalf of Plaintiff demonstrates, the denials and
`
`defenses raised in Defendant’s Answer and Counterclaims are without merit and it is respectfully
`
`submitted that the Answer and Counterclaims should be stricken and dismissed. As the Complaint
`
`sets forth, and as attested to in Plaintiff’s affidavit, Defendants, MARIANO IRIARTE and ANA
`
`IRIARTE defaulted under the terms of the Note and Mortgage for failure to pay the June 6, 2015
`
`payment and all subsequent payments accruing thereafter. Defendant has not and cannot show proof
`
`ofsufficient tender to defeat Plaintiffs right to have accelerated the debt and commenced the present
`
`action. Accordingly, Defendant does not appear to have a meritorious defense to the foreclosure
`
`action and Summary Judgment is warranted.
`
`THE SUMMARY JUDGMENT STANDARDS
`
`13.
`
`Summary Judgment is appropriate when there is no issue of material fact requiring
`
`a trial and the movant is entitled to judgment as a matter of law. CPLR 3212(b); Zuckerman v. City
`
`W, 49 NY. 557, 562; N.Y.S.2d 595, 598 (1980). The movant has the initial burden of showing
`
`that no genuine issues of material fact exist. Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063, 601
`
`N.Y.SS.2d 463, 464 (1993). The burden then shifts to the opposing party to come forward with
`
`50f 15
`5 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08312017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`
`
`evidence, in admissible form, showing the existence of a triable fact. Fed. Home Loan Mortg. Corp.
`
`V. Karastathis, 237 AD. 2d 558, 655 N.Y.S.2d 631 (2nd Dept 1997). General denials are
`
`insufficient to defeat a motion for summary judgment. Stern V. Stern, 87 A.D.2d 887 (2nd Dept
`
`1982); Pathrnark Graphic v. J .M. Fields Inc. , 53 A.D.2d 531 ( 13‘ Dept. 1976) Defenses that merely
`
`plead conclusions of law without supporting facts are insufficient and fatally deficient. Beghgr
`
`
`V Feller 884 N.Y.S. 2d 83 (2nd Dept 2009). Self-serving and conclusory allegations do not raise
`
`issues offact and do not require a moving plaintiffto respond to alleged affirrnative defendant which
`
`are based on such allegations. Charter One Bank FSB V. Leone, 845 NYS 2d 513 (3” Dept 2007).
`
`Where a defendant fails to oppose some or all matters advanced on a motion for summaryjudgment,
`
`the facts as alleged in the movant’ 5 papers may be deemed admitted as there is in effect, a concession
`
`that no question of fact exists. Argent Mortgage Co. LLC v. Mentesana, 915 NYS2d 591 (2nd Dept
`
`2010). The failure to raise pleaded affirmative defenses in opposition to a motion for
`
`summary judgment renders those defenses abandoned and thus subject to dismissal. New York
`
`Commercial Bank v. J. Realty F Rockaway Ltd., 969 NYSZd 796 (2nd Dept 2013).
`
`Plaintiff has made out a primafacie entitlement to foreclosure, as it has submitted proof of
`
`the Mortgage and Note and of Defendant’s default in payment. Citidress II V 207 Second Avenue
`
`Realty Corp 21 A.D.3d 774, 802 N.Y.S. 2d 393 (2005); Flagstar Bank v Bellafiore, 943 N.Y.S. 2d
`
`551 (2“1 Dept 2012); HSBC Bank USA NA v. Schwartz, 931 N.Y.S. 2d 528 (2nd Dept 2011).
`
`Plaintiffhas established its entitlement to judgment as a matter of law. JPMorgan Chase Bank NA.
`
`v Agnello, 878 N.Y.S. 2d 397 (2nd Dept 2009).
`
`14.
`
`THAT Plaintiff has complied with all applicable provisions of the RPAPL Section
`
`1304 and Banking Law, and specifically with Banking Law § 595-a and 6—1 and 6-m if applicable,
`
`in securing the aforementioned indebtedness and at all times thereafter. In accordance with RPAPL
`
`60f 15
`6 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08312017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`
`
`Section 1304, a 90 day notice was sent to the borrower at least 90 days ago but within the last 12
`
`months. The 90 day notice was sent at least 90 days before the commencement of this foreclosure
`
`action. Further, the notice under RPAPL Section 1304 was in 14—point type, contained the statutorily
`
`dictated language and the addresses and phone numbers of at least five US Department of Housing
`
`and Urban Development approved housing counseling agencies in the region Where the borrower
`
`resides and was mailed by registered or certified mail and first class mail to the last known address
`
`ofthe borrower. Plaintiffhas fully and completely complied with the RPAPL Section 1 304. Further,
`
`Plaintiffhas complied fully with RPAPL Section 1306 filing requirements in that the filing with the
`
`superintendent was completed within three (3) business days of the mailing.
`
`DEFENDANT’S AFFIRMATIVE DEFENSES ARE ALL WITHOUT MERIT.
`
`1 5.
`
`THAT Defendant raises as a FIRST AFFIRMATIVE DEFENSE that Plaintifffailed
`
`to allege the required allegations as referenced in RPAPL 1302 and therefor the Plaintiff has not
`
`stated a cause of action for which relief can be granted. However, a review ofthe 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 payment obligations
`
`thereunder. The foregoing is sufficient to establish entitlement to a 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. 321 1 and cannot be interposed in an answer. Bentivegna V. Meenan
`
`Oil Co. 510 NYSZd 626 (2nd Dept 1987); Bank of America NA V. Rodomista l8 NYS3d 577
`
`(Suffolk County 2015).
`
`Further RPAPL 1302 refers to adhereing to 6—1 and 6-m of the New York Banking Law and
`
`pleading such in the Complaint. Plaintiff ‘s Complaint complies with RPAPL 1302. Moreover, the
`
`70f 15
`7 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08312017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD uYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`
`
`subject mortgage has been reviewed in complinace with said statute and was released from the
`
`foreclousre Conference Settlement Part on January 31, 2015. Defenses that merely plead
`
`conclusions of law without supporting facts are insufficient and fatally deficient. Becher V
`
`Belle; 884 NYS2d 83 (2nd Dept 2009).
`
`16.
`
`THAT Defendant raises as a SECOND AFFIRMATIVE DEFENSE that Plaintiff
`
`did not own the note and mortgage when the action was commenced and therefor Plaintiff lacks the
`
`legal capacity and standing to bring this foreclosure action. Where a plaintiff possesses a note that,
`
`on its face or by allonge, contains an indorsement in blank or bears a special indorsement payable
`
`to the order ofthe plaintiff, such a party is a holder of the note and entitled to enforce the instrument.
`
`Deutsche Bank Natl. Trust Co. V. Monica, 131 A.D.3d 737, 739 (3rd Dept. 2015).
`
`The Affidavit of Note Possession of KOLETTE MODLIN is legally sufficient to establish
`
`the Plaintiff s standing, as it sets forth pre-complaint possession of the original Note and supplies
`
`a copy ofthe original Note endorsed into Plaintiff. See Aurora Loan Services LLC v Mercado, 2014
`
`NY. Misc. LEXIS 5324 (Suffolk County 2014); Wells Fargo Bank NA v Gamon, 2015 NY Misc.
`
`LEXIS 2032 (Suffolk County 2015).
`
`Counsel refers the Court to Paragraph 4 of the June 20, 2017 Affidavit of Note
`
`Possession of KOLETTE MODLIN. Based upon personal knowledge gained by her review ofthe
`
`business records of Plaintiff, US. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER
`
`PARTICIPATION TRUST attests to the physical possession of the original Note to Plaintiff at the
`
`time the action was commenced.
`
`Under the UCC’s definition of a “holder” of an instrument, possession is a significant factor
`
`and the possessor is a holder without regard to the legality 0r propriety of his possession.(emphasis
`
`added) Stewart Becker Ltd. v. Horowitz, 405 N.Y.S.2d 571 , 574 (Suffolk County 1978); NY CLS
`
`80f 15
`8 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08E2017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`
`
`UCC sec. 1—201(21)(A).
`
`NY CLS UCC sec. 1—201(21) defines “holder” in relevant part as follows:
`(21) “Holder” means:
`(A) the person in possession of a negotiable instrument that is payable either to
`bearer or to an identified person that is the person in possession; ***
`
`Plaintiff was in possession of the original Note indorsed to Plaintiff at the time of the
`
`commencement of this action, thus is its holder entitled to bring this action. Deutsche Bank
`
`Natl. Trust Co. V. Monica, 131 A.D.3d 737, 739 (3rd] Dept. 2015)
`
`Delivery to Plaintiff is inferred from the possession of the Note by Plaintiff as a matter of
`
`law. Aurora Loan Services LLC v. Taylor, 25 NY3d 355, 366 (2015).
`
`Plaintiff has established its standing to foreclose
`
`Moreover, Plaintiff was, at the time this action was commenced, the holder of the Note, having
`
`possessed the original Note endorsed to Plaintiff. A copy is attached to the Complaint. This fact
`
`alone is sufficient to afford Plaintiff standing. Nationstar Mtge. V. Catizone, 9 NYS 3d 1151 (2nd
`
`Dept 2015). The Plaintiff” s attachment of a copy of the original Note to the Complaint establishes
`
`prima facie possession ofthe Note. Emigrant Bank v Larizza, 129 A.D.3d 904 (2nd Dept 2015). The
`
`Plaintiff is not required to produce the original Note for inspection by the Court. Aurora Loan
`
`Services LLC v. Taylor, 25 NY3d 355, 362 (2015).
`
`In Deutsche Bank National Trust Co. V. Leigh, 2016 NY. Slip Op. 01635 (2nd Dept 2016),
`
`the Second Department clearly and succinctly held:
`
`Contrary to the appellant's contention, the plaintiff established its standing as the
`holder of the note and mortgage by demonstrating that the note was in its possession
`and the mortgage had been assigned to it prior to the commencement of the action,
`as evidenced by its attachment of the endorsed note, the mortgage, and the
`mortgage assignment to the summons and complaint at the time the action was
`commenced. (Emphasis added.)
`
`Plaintiff has standing. Period.
`
`90f 15
`9 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08312017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD uYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`
`
`17.
`
`THAT Defendant raises as a THIRD AFFIRMATIVE DEFENSE that the Loan is
`
`unenforceable because Plaintiff failed to contract in good faith. However, Defendant’s assertions
`
`are merely conclusory in nature, and are not buttressed by any substantiating facts at all. Such
`
`infirmities render the defense wholly without merit. See Becher V Feller, Supra. Moreover, because
`
`Defendant signed the relevant loan documents, the Defense is further without merit as a matter of
`
`law. See Cogut V 1220 Park Ave. Corp, 2012 NY. Misc. LEXIS 3855, 14 (NY Sup. Co. 2012).
`
`“Plaintiffs argument that the...agreement is unenforceable because of...a Violation of the covenant
`
`of good faith and fair dealing...is without merit...[a]n individual who signs a written contract is
`
`conclusively presumed to know its contents and to assent to them.” Here, Defendant is presumed to
`
`know the contents of the subject loan documents and is presumed to have assented to those terms.
`
`Thus, this defense is completely meritless and subject to dismissal.
`
`18.
`
`THAT Defendant raises as a FOURTH AFFIRMATIVE DEFENSE that Plaintiff
`
`failed to gain personal jurisdiction over the Defendants. However, the Affidavit of Service, a copy
`
`of which is annexed hereto, avers otherwise. As the Affidavit indicates, Defendant ANA IRIARTE
`
`and ANA M. IRIARTE was personally served on April 25, 2016 as permitted under CPLR § 308(1).
`
`Also, the Affidavits indicate that Defendant, MARIANO IRIARTE was served on April 25, 2016
`
`by substitute service and that a copy of the Summons and Complaint was mailed to Defendant on
`
`April 28, 201 6 as proscribed by CPLR § 308(2). Affidavits ofservice constituteprimafacie evidence
`
`ofproper service and a conclusory denial of service is insufficient to raise any material issue of fact.
`
`Simmons First National Bank v Mandracchia, 248 A.D.2d 375 (2nd Dept 1998); American Business
`
`
`Credit Inc. V. Sanabria l9 A.D.3d 624 (2nd Dept.2005). In any event, Defendant failed to timely
`
`move to dismiss on this ground under CPLR 321 1(6); Alaska Seaboard Partners Ltd. Partnership v.
`
`10 of 15
`10 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08312017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`
`
`Anninos, 686 NYSZd 500 (2nd Dept 1999). This Defense is without merit.
`
`19.
`
`THAT Defendant raises as a FIFTH AFFIRMATIVE DEFENSE that Plaintiff failed
`
`to send a notice of acceleration prior to the commencement of this action. Defendants were in fact
`
`served with sent the Notice of Intent to Foreclose. Plaintiff refers the Court to paragraph 7 of and
`
`Exhibit C to the Affidavit in Support of Summary Judgment of Romualdo D. Fernandez. A
`
`mere simple denial by a mortgagor of receipt of such a notice does not give rise to a valid defense
`
`to a foreclosure. Sansone v Cavallaro, 284 A.D.2d 817 (3rd Dept 2001 ). Further, acceleration of the
`
`Mortgage was accomplished as a matter of law by the filing and service of the Complaint. Logue v.
`
`)Loung, 463 N.Y.S.2d 120 (3rd Dept.,1983). The law presumes that a letter properly addressed,
`
`stamped and mailed has been duly delivered to the addressee (and) there is a presumption ofreceipt
`
`which flows from fact of mailing. DeFeo v Merchant, 115 Misc. 2d 286, 288 (Westchester 1982);
`
`Accord Trusts and Guarantee Co v Earnhardt, 270 NY 350, 352 (1936). “Strict compliance” with
`
`the default notice provision in the Mortgage is not required as a matter of law. Indeed, substantial
`
`compliance with the terms of the subject mortgage is sufficient. IndyMac Bank FSB v. Kamen,
`
`890 NYS2d 649 (2nd Dept. 2009). The Notice need only “adequately conform” to the relevant
`
`mortgage provision. First Trust National Association v. Meisels, 651 NYS2d 121 (2nd Dept 1996).
`
`This defense is therefore meritless and must be dismissed.
`
`20.
`
`THAT Defendant raises as a SIXTH AFFIRMATIVE DEFENSE that Plaintiff failed
`
`to send and serve a 90 day notice prior to commencement of this action. The requisite 90 day Notice
`
`was duly sent to Defendant. Plaintiff refers the Court to paragraph 8 of and Exhibit D to the
`
`Affidavit in Support of Summary Judgment of Romualdo D. Fernandez. The law presumes that
`
`a letter properly addressed, stamped and mailed has been duly delivered to the addressee (and) there
`
`11 of 15
`11 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08312017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`is a presumption of receipt which flows from fact ofmailing. DeFeo V Merchant, l 15 Misc. 2d 286,
`
`288 (Westchester 1982); Accord Trusts and Guarantee Co v Barnhardt, 270 NY 350, 352 (1936).
`
`This defense is therefore meritless and must be dismissed.
`
`Furthermore, Defendant claims that Plaintiff has failed to properly adhere to section 6—1
`
`and/or 6-m of the New York Banking Law. The subject mortgage has been reviewed in compliance
`
`with said statutes and was released from the Foreclosure Conference Settlement Part on January 31,
`
`2016. Defenses that merely plead conclusions of law without supporting facts are insufficient
`
`and fatally deficient. Becher V Feller, 884 NYS2d 83 (2nd Dept 2009).
`
`21.
`
`THAT Defendant raises as a SEVENTH AFFIRMATIVE DEFENSE that
`
`Defendant’s made partial or full payments and therefor the Defendants are not in default. Defendant
`
`attaches no admissible evidence whatsoever ofpayment made in accordance with the mortgage that
`
`would defeat Plaintiff” 3 request for relief herein. See General Electric Capital Corporation v Ocean
`
`
`Marine Inc. et al., 2011 NY Slip Op 33154(U); 2011 NY. Misc. LEXIS 5809 (Nassau Co. Sup. Ct.
`
`2011) (holding that the affirmative defense of payment was insufficient to survive Summary
`
`Judgment in a foreclosure proceeding, as answering defendants failed to provide support for the
`
`defense). Moreover, the existence of a dispute as to the exact amount owed by a mortgagor to a
`
`mortgagee does not preclude the issuance ofa summaryjudgment directing the sale ofthe mortgaged
`
`property. See Long Island Savings Bank of Centereach FSB v Denkensohn, 222 A.D.2d 659; 635
`
`N.Y.S.2d 683 (2nd Dept 1995), Crest/Good Manufacturing Co. Inc v Baumann, 160 A.D.2d 831; 554
`
`N.Y.S.2d 264 (2nd Dept 1990). Any dispute as to the exact amount owed plaintiff pursuant to the
`
`mortgage and note, may be resolved after a reference pursuant to RPAPL 1321. This Defense is
`
`thereby without merit, and should be stricken.
`
`12 of 15
`12 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08312017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`
`
`22.
`
`THAT Defendants raise as an EIGHTH AFFIRMATIVE DEFENSE that the
`
`Defendants do not own any money on any debt to Plaintiff or any other entity because Plaintiff and
`
`all other creditors have been paid by third party entities in the form of monoline insurance, credit
`
`default swaps, reserves, over—collateralization, cross—collateralization, and/or government bailouts.
`
`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). 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.
`
`DEFENDANTS COUNTERCLAIMS ARE WITHOUT MERIT AND MUST BE STRICKEN
`
`23.
`
`THAT Defendants raise as a FIRST COUNTERCLAIM that Plaintiff failed to
`
`comply with the required Federal and New York State Disclosures concerning a variable rate interest
`
`loan. The claim of a TILA violation is not an affirmative defense to this foreclosure as a matter
`
`of law. LaSalle Bank Nat. Assn v Kosarovich, 31 AD 3d 904 (3rd Dept 2006). Moreover,
`
`Defendant fails to provide any specific facts illustrating the alleged lack of compliance with this
`
`statute and fails to identify which, if any, provisions ofthe statute have been violated. TILA requires
`
`“meaningful” disclosure, not “perfect” disclosure, and TILA’s requirements are to be “reasonably
`
`construed and equitably applied”. Kahraman v Countflide Home Loans Inc., 2012 U.S.Dist.
`
`LEXIS l 1 1712 (ED. NY. 2012). Moreover, Defendant’s TILA claims, if any, for damages are time
`
`13 of 15
`13 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08312017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`
`
`barred as a matter of law. TILA provides that all claims for statutory damages must be brought
`
`within one (1) year from the date of the occurrence of the violation. 15 U.S.C.A. Sec 1640(6).Th6
`
`extension of the right to rescind to three years in the event of an incorrect material disclosure under
`
`TILA has expired in this case as well. 15 U.S.C.A. Sec 163 5(f). Finally, Defendants offer no tender
`
`of the necessary amount due Plaintiff to obtain rescission. Kahraman, supra.
`
`24.
`
`THAT Defendants raise as a SECOND COUNTERCLAIM that Plaintiff failed to
`
`comply with required New York State Disclosure concerning the commencement and prosecution
`
`of a mortgage foreclosure action. For the multitude ofreasons set forth and detailed above, Plaintiff
`
`clearly is entitled to foreclose. This claim is without merit and should be stricken.
`
`25.
`
`THAT this application is being submitted after the matter was released from the
`
`mandatory Foreclosure Settlement Conference on January 31, 2017.
`
`26.
`
`THAT all of the proceedings herein have been regular and in conformity with the
`
`rules and practice of the Court and no previous application has been made for the relief requested
`
`herein.
`
`14 of 15
`14 of 15
`
`

`

`FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:35 PM
`FILED: ROCKLAND COUNTY CLERK 08E2017 02:35 PM
`
`NYSCEF DOC. NO. 34
`NYSCEF DOC. NO. 34
`
`INDEX NO. 031383/2016
`INDEX NO~ 031383/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 08/23/2017
`RECEIVED NYSCEF: 08/23/2017
`
`CONCLUSION
`
`Wherefore, affirmant respectfiilly prays for an Order dismissing the Answer and
`
`Counterclaims of Defendants, MARIANO IRIARTE and ANA IRIARTE, directing the entry of
`
`Summary Judgment, appointing a Referee to compute and report, and entering default against
`
`Defendants, BENEFICIAL HOMEOWNER SERVICE CORPORATION; JPMORGAN CHASE
`
`BANK, N.A.; WESTERN NEW ENGLAND COLLEGE; and COMMISSIONER OF TAXATION
`
`AND FINANCE ; DANIEL IRIARTE and MARISA IRIARTE, all as set forth in the proposed Order
`
`of Reference simultaneously served with this motion, and for such other and further relief as the
`
`Court deems just.
`
`Dated: 4%'%&,Qé 21 ,2017
`
`
`
`MONIM. CHRISTIE, ESQ.
`
`FEIN, SUCH & CRANE, LLP
`
`Attorneys for Plaintiff
`
`Office and PO. Address
`
`1400 OLD COUNTRY ROAD STE C103
`
`WESTBURY, NY 11590
`
`Telephone No. 516/394-6921
`
`15 of 15
`15 of 15
`
`