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`FILED: SUFFOLK COUNTY CLERK 06m2017 02:52 PM
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`NYSCEF DOC. NO. 28
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`INDEX NO. 608067/2016
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`RaCaIVaD VYSCEF: 06/05/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
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`COUNTY OF SUFFOLK
`VERNY—73I
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`JPMC SPECIALTY MORTGAGE LLC F/K/A WM
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`SPECIALTY MORTGAGE LLC,
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`-vs-
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`Plaintiff,
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`ATTORNEY’S AFFIRMATION
`IN SUPPORT OF PLAINTIFF'S
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`MOTION FOR SUMMARY
`JUDGMENT AND AN ORDER
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`OF REFERENCE
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`DAVID PADULA A/K/A DAVID E. PADULA;
`SHARYN PADULA A/K/A SHARYN L. PADULA
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`A/K/A SHARYN DINUBILA A/K/A SHARYN L.
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`Index No. 608067/2016
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`BIRNHOLZ; MIDLAND FUNDING LLC DBA IN
`NEW YORK AS MIDLAND FUNDING OF
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`DELAWARE LLC A/P/O COLUMBUS BANK
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`AND TRUST; CLERK OF THE SUFFOLK
`COUNTY TRAFFIC & PARKING VIOLATIONS
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`AGENCY; HOUSEHOLD FINANCE
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`CORPORATION III; JACOBY & JACOBY;
`"JOHN DOE # 1-5" AND "JANE DOE #1-5"said
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`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,
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`Defendants.
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`MICHAEL S. HANUSEK ESQ. affirms under penalties ofperjury the truth ofthe following:
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`1.
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`I am an attorney in the law firm of Fein, Such & Crane, LLP, attorneys of record for
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`the Plaintiff in this action and am duly admitted to practice law in New York State. I am personally
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`familiar with the relevant facts and circumstances ofthis matter, particularly the pleadings filed and
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`proceedings conducted herein. I submit this affirmation in support ofPlaintiff’ 5 Motion for Summary
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`Judgment and Order of Reference.
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`FACTS AND PROCEDURAL HISTORY
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`2.
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`THAT this action is brought to foreclose a mortgage dated May 30, 2006, covering
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`real property located at 6 AWIXA PLACE, SELDEN, NY 11784 executed by DAVID PADULA
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`and SHARYN PADULA to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS
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`NOMINEE FOR ENCORE CREDIT CORP, A CALIFORNIA CORPORATION to secure the sum
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`of $3 88,500.00, which Mortgage was recorded in the SUFFOLK County Clerk's Office on
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`September 11, 2006, in Liber 21379 of Mortgages, at Page 328, et seq.
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`On April 1 8, 2009, a Loan Modification Agreement was executed by DAVID PADULA and
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`SHARYN PADULA to JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, which
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`Modification cured a prior default, and which modified the terms of the Mortgage recorded in
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`Liber 21379 of Mortgages, at Page 328, to reflect a new principal balance of $408,239.30 ("Loan
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`Modification Agreement"). These sums were contemplated by the original Mortgage.
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`On September 22, 201 1, a Home Affordable Modification Agreement (“HAMP Agremeent”)
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`was executed by DAVID PADULA to JPMORGAN CHASE BANK, NA, which HAMP
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`Modification cured a prior default, and which modified the terms of the Mortgage recorded in
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`Liber 21379 of Mortgages, at Page 328, to reflect a new principal balance of $442,235.42. These
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`sums were contemplated by the original Mortgage.
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`Said Mortgage was assigned by MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
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`INC., AS NOMINEE FOR ENCORE CREDIT CORP., ITS SUCCESSORS AND ASSIGNS to
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`JPMC SPECIALTY MORTGAGE LLC F/K/A WM SPECIALTY MORTGAGE LLC by
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`Assignment executed October 19, 2012 and recorded in the SUFFOLK County Clerk's Office on
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`January 15, 2013, in Liber 22293 of Mortgages, at Page 103, et seq.
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`On February 10, 2014, a Loan Modification Agreement was executed by Defendant DAVID
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`PADULA to JPMORGAN CHASE BANK, N.A., which Modification cured a prior default, and
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`which modified the terms of the Mortgage recorded in Liber 21379 of Mortgages, at Page 328, to
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`reflect a new principal balance of $421,098.51. These sums were contemplated by the original
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`Mortgage.
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`Said Mortgage was further assigned by JPMC SPECIALTY MORTGAGE LLC F/K/A WM
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`SPECIALTY MORTGAGE LLC to JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
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`by Assignment executed November 18, 2016 and recorded in the SUFFOLK County Clerk’s Office
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`on November 30, 2016, in Liber 22762 of Mortgages, at Page 819, et seq.
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`Said Mortgage was further assigned by JPMORGAN CHASE BANK, N.A., to US. BANK
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`TRUST, N.A. AS TRUSTEE FOR LSF9 MASTER PART PARTICIPATION TRUST by
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`Assignment executed March 21, 2017 and recorded in the SUFFOLK County Clerk’s Office on April
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`10, 2017, in Liber 22806 of Mortgages, at Page 733, et seq. Plaintiff makes application for an order
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`substituting US. BANK TRUST, N.A. AS TRUSTEE FOR LSF9 MASTER PART
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`PARTICIPATION TRUST as Plaintiff herein.
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`3.
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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
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`SUFFOLK County Clerk’s Office on May 26, 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 SUFFOLK County Clerk’s Office
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`on May 26, 2016. See Exhibit “B” attached hereto.
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`0)
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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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`SUFFOLK County Clerk’s Office, date stamped copies ofwhich are attached
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`hereto as Exhibit “C”.
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`d)
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`On June 29, 2016, Defendants DAVID E. PADULA and SHARYN L.
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`PADULA, through their attorney FRIEDMAN LAW ASSOCIATES, P.C.,
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`served an Answer to the Complaint, a copy of which is attached hereto as
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`Exhibit “D”.
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`On February 2, 2016, Defendants DAVID PADULA and SHARYN
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`PADULA were served with the Notice of Intent to Foreclose. Counsel refers
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`the Court to Paragraph 7 of, and Exhibit C to, the May 16, 2017 Affidavit In
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`Support of Summary Judgment of DAVID NILSEN. Affiant has personal
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`knowledge of the manner in which the business records of Plaintiff were
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`created, has personal knowledge of Plaintiff’s business and mailing
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`procedures, and can attest to the content/service/mailing of said Notice.
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`On December 9, 2015, Defendants DAVID PADULA and SHARYN
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`PADULA were served with the 90 day Pre—Foreclosure Notice. Counsel
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`refers the Court to Paragraph 8 of, and Exhibit D to, the May 16, 2017
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`Affidavit In Support of Summary Judgment of DAVID NILSEN. Affiant
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`has personal knowledge of the manner in which the business records of
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`Plaintiffwere created, has personal knowledge of Plaintiff’ 5 business and
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`mailing procedures, and can attest to the content/service/mailing of said
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`Notice.
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`g)
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`On January 15, 2013, November 30, 2016 and April 10, 2017, Assignments
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`of Mortgage were recorded in the SUFFOLK County Clerk’s Office, copies
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`of which are annexed collectively hereto as Exhibit “E”.
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`4.
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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 be
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`stated in such notice, was filed in the Office ofthe Clerk ofthe County of SUFFOLK, that being the
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`County in which the mortgaged premise is situated; and that since the filing of the said notice, the
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`verified complaint in this action has not been amended by making new parties to this action, or so
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`as to affect other property not described in the original complaint, or so as to extend the claims of
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`the Plaintiff as against the mortgaged premises.
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`5.
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`THAT all of the said Defendants are of full age; that none of the Defendants are in
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`the armed services of the United States of America.
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`6.
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`THAT none ofthe Defendants are ofunsound mind and that none ofthe Defendants,
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`who have not appeared, are absentees.
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`7.
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`THAT the attached affidavits of service show that the name(s) of the occupant(s) of
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`the subject property, as provided to the process server at
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`time of service, are: LAUREN
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`CRISCUOLO, NYKILAS DINUBILA, and SOMMYR DINBILA. Request is therefore made that
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`these names be substituted in the caption of this action in the place and stead of defendants "JANE
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`DOE #1 " and ”JOHN DOE #1-2", and that the caption of this action be amended accordingly, all
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`without prejudice to any of the proceedings heretofore had herein.
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`8.
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`THAT the fictitiously named defendants captioned as "JOHN DOE #3 -5 ” and "JANE
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`DOE #2-5 " were not served with copies ofthe summons and complaint and are not necessary parties
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`defendant. Request is therefore made that said defendant(s) be excised from the action and from the
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`caption of the action, all without prejudice to any of the proceedings heretofore had herein.
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`9.
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`THAT the time ofthe Defendants to appear, answer or otherwise move, with respect
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`to the complaint has expired and has not been extended by stipulation, order of the Court or
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`otherwise, and that none of the Defendants has appeared or answered the complaint, except for as
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`set forth above and Plaintiff is entitled to judgment by default against said non-answering
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`RaCaIVaD VYSCEF:
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`defendants: MIDLAND FUNDING LLC DBA IN NEW YORK AS MIDLAND FUNDING OF
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`DELAWARE LLC A/P/O COLUMBUS BANK AND TRUST; CLERK OF THE SUFFOLK
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`COUNTY TRAFFIC & PARKING VIOLATIONS AGENCY; HOUSEHOLD FINANCE
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`CORPORATION III; and JACOBY & JACOBY, and non—answering tenants: LAUREN
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`CRISCUOLO,NYKILAS DINUBILA, and SOMMYR DINBIL.
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`10.
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`THAT subsequent to the commencement of this action, Plaintiff assigned the
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`Mortgage to be foreclosed to JPMORGAN CHASE BANK, NATIONAL ASSOCIATION by
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`Assignment executed November 18, 2016 and recorded in the SUFFOLK County Clerk’s Office on
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`November 30, 2016, in Liber 22762 of Mortgages, at Page 819, et seq.
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`Said Mortgage was further assigned by JPMORGAN CHASE BANK, N.A., to US. BANK
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`TRUST, N.A. AS TRUSTEE FOR LSF9 MASTER PART PARTICIPATION TRUST by
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`Assignment executed March 21 , 2017 and recorded in the SUFFOLK County Clerk’s Office on April
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`10, 2017, in Liber 22806 of Mortgages, at Page 733, et seq. Request is therefore made that US.
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`BANK TRUST, N.A. AS TRUSTEE FOR LSF9 MASTER PART PARTICIPATION TRUST be
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`substituted in this action as Plaintiff in the place and in stead of JPMC SPECIALTY MORTGAGE
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`LLC F/K/A WM SPECIALTY MORTGAGE LLC, and that the caption of the action be amended
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`accordingly, and that the Summons and Complaint and Notice of Pendency also be amended, all
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`without prejudice to any of the proceedings heretofore had herein.
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`11.
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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 ofthe summons and
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`complaint was served as can be seen from the affidavit of service attached hereto. The process
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`server effected service upon the mortgagor(s) with the complaint copy of the notification pursuant
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`to RPAPL 1303. An exact photocopy of said Notice is attached hereto, evidencing that the title of
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`the Notice is in bold, 20—point font, the text of the Notice is in bold 14-point font, it was on its own
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`page and it was served with the Summons and Complaint.
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`12.
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`THAT the mortgagor(s) was served with additional notice of summons in compliance
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`with CPLR 3215(g)(3), a copy of which is attached hereto as part of Exhibit "C".
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`SUMMARY JUDGMENT
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`l3.
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`THAT as the attached affidavit on behalf of Plaintiff demonstrates, the denials and
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`defenses raised in Defendants’ Answer are without merit and it is respectfully submitted that the
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`Answer should be stricken and dismissed. As the Complaint sets forth, and as attested to in
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`Plaintiffs affidavit, Defendants DAVID PADULA and SHARYN PADULA defaulted under the
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`terms of the Note and Mortgage for failure to pay the May 1, 2015 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 Plaintiffs right to have accelerated the debt and commenced the present action. Accordingly,
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`Defendants do not appear to have a meritorious defense to the foreclosure action and Summary
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`Judgment is warranted.
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`THE SUMMARY JUDGMENT STANDARDS
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`14.
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`Summary Judgment is appropriate when there is no issue of material fact requiring
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`a trial and the movant is entitled to judgment as a matter of law. CPLR 3212(b); Zuckerman v. City
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`ofN.Y., 49 NY. 557, 562; N.Y.S.2d 595, 598 (1980). The movant has the initial burden ofshowing
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`that no genuine issues of material fact exist. Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063, 601
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`N.Y.SS.2d 463, 464 (1993). The burden then shifts to the opposing party to come forward with
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`evidence, in admissible form, showing the existence of a triable fact. Fed. Home Loan Mortg. Corp.
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`v. Karastathis, 237 AD. 2d 558, 655 N.Y.S.2d 631 (2“‘11 Dept 1997). General denials are
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`insufficient to defeat a motion for summary judgment. Stern v. Stern, 87 A.D.2d 887 (2nd Dept
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`1982); Pathmark Graphic v. J .M. Fields Inc. , 53 A.D.2d 531 (1St Dept. 1976) Defenses that merely
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`plead conclusions of law Without supporting facts are insufficient and fatally deficient. Becher
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`v Feller 884 N.Y.S. 2d 83 (2“1 Dept 2009). Self-serving and conclusory allegations do not raise
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`issues offact and do not require a moving plaintiffto respond to alleged affirmative defendant which
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`are based on such allegations. Charter One Bank FSB V. Leone, 845 NYS 2d 513 (3rd Dept 2007).
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`Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment,
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`the facts as alleged in the movant’ 5 papers may be deemed admitted as there is in effect, a concession
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`that no question of fact exists. Argent Mortgage Co. LLC v. Mentesana, 915 NYS2d 591 (2“d Dept
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`2010). The failure to raise pleaded affirmative defenses in opposition to a motion for summary
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`judgment renders those defenses abandoned and thus subject to dismissal. New York Commercial
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`Bank v. J. Realty F Rockaway Ltd, 969 NYS2d 796 (2nd Dept 2013).
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`Plaintiff has made out a primafacie entitlement to foreclosure, as it has submitted proof of
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`the Mortgage and Note and of Defendants’ default in payment. Citidress 11 v 207 Second Avenue
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`Realty Corp 21 A.D.3d 774, 802 N.Y.S. 2d 393 (2005); Flagstar Bank v Bellafiore, 943 N.Y.S. 2d
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`551 (2nd Dept 2012); HSBC Bank USA NA v. Schwartz, 931 N.Y.S. 2d 528 (2“d Dept 2011).
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`Plaintiff has established its entitlement to judgment as a matter of law. JPMorgan Chase Bank NA.
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`v Agnello, 878 N.Y.S. 2d 397 (2nd Dept 2009).
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`PLAINTIFF HAS FULLY COMPLIED WITH RPAPL 1304.
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`15.
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`THAT Plaintiff has complied with all applicable provisions of the RPAPL Section
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`1304 and Banking Law, and specifically with Banking Law § 595—a and 6—1 and 6-m if applicable,
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`in securing the aforementioned indebtedness and at all times thereafter. In accordance with RPAPL
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`Section 1304, a 90 day notice was sent to the borrowers at least 90 days ago but within the last 12
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`months. The 90 day notice was sent at least 90 days before the commencement of this foreclosure
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`action. Further, the notice under RPAPL Section 1304 was in 14-point type, contained the statutorily
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`dictated language and the addresses and phone numbers of at least five US Department of Housing
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`and Urban Development approved housing counseling agencies in the region where the borrowers
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`reside and was mailed by registered or certified mail and first class mail to the last known address
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`of the borrowers. On December 9, 2015, Defendants DAVID PADULA and SHARYN PADULA
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`were served with the 90 day Pre~Foreclosure Notice. Counsel refers the Court to Paragraph 8 of,
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`and Exhibit D to, the May 16, 2017 Affidavit In Support of Summary Judgment of DAVID
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`NILSEN.
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`An examination of the corporate records is the appropriate and routine manner in which a
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`corporate employee or officer gains personal knowledge of an individual account or transaction. In
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`HSBC Bank USA, N.A v. Sage 112 A.D.3d 1126; 977 N.Y.S.2d 446; 2013 NY. App. Div. LEXIS
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`8263; 2013 NY Slip Op 8327, the Court stated:
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`“Contrary to Defendant’s claim, the affidavit from an employee of the mortgage
`servicing company was adequately based on a review ofthe books and records of the
`company maintained in the ordinary course of business, and the lack of personal
`knowledge as to the creation of the documents is not fatal (see CPLR 3212 [b]; 4518
`[a]; Alvarez v Prospect Hosp. 68 NY2d 320, 325, 501 NE2d 572, 508 NYS2d 923
`[1986]).”
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`Plaintiff’ s prima facie case can certainly be proven by the use of business records, including
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`those of the Plaintiff’s prior servicer as the Plaintiff s assignee’s current servicer has incorporated
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`such records into its own and relies on same in its ordinary course of business. Deutsche Bank Natl.
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`Trust Co. v. Monica, 131 A.D.3d 737 (3rd Dept. 2015); HSBC Bank USA v. Bhatti, 2016 NY Slip
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`Op 30167(U) (Queens County 2016). Indeed, that reliance alone is sufficient. 14.; People v Cratsley,
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`86 NY2d 81 (1995). Paragraph 4 of the Affidavit of DAVID NILSEN more than satisfies the
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`requirements of the business records exception to the hearsay rule. 1d.
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`; CPLR 4518(a). The
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`Affidavit does not merely make some vague reference to the relevant business records but
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`rather actually supplies them.
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`That a loan servicer may testify and supply an affidavit on behalf of a foreclosing
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`plaintiff is well established. Wells Fargo Bank v Zelaya, 18 N.Y.S. 3d 582 (Suffolk County 2015);
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`HSBC Bank USA Natl. Ass’n v Sage, 112 AD3d 1126 (3rd Dept 2013).
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`Plaintiff has fully and completely complied with the RPAPL Section 1304. Further, Plaintiff
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`has complied fully with RPAPL Section 1306 filing requirements in that the filing with the
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`superintendent was completed within three (3) business days of the mailing.
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`DEFENDANTS’ DEFENSES ARE ALL WITHOUT MERIT.
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`16.
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`THAT Defendants raise as a FIRST AFFIRMATIVE DEFENSE that Plaintiff
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`breached its duty to act in good faith and fair dealings with respect to servicing of the subject
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`Mortgage and/or Note. However, Defendant’s assertions are merely conclusory in nature, and are
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`not buttressed by any substantiating facts at all. Such infirmities render the defense wholly Without
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`merit. See Becher V Feller, Supra. Moreover, because Defendants signed the relevant loan
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`documents, the Defense is further without merit as a matter of law. See Cogut V 1220 Park Ave.
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`Q9332” 2012 NY. Misc. LEXIS 3855, 14 (NY Sup. Co. 2012). “Plaintist argument that
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`the...agreement is unenforceable because of...a Violation of the covenant of good faith and fair
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`dealing...is without merit...[a]n individual who signs a written contract is conclusively presumed to
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`know its contents and to assent to them.” Here, Defendants are presumed to know the contents of
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`the subject loan documents and is presumed to have assented to those terms. This defense is without
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`merit and subject to dismissal.
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`17.
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`THAT Defendants raise as a SECOND AFFIRMATIVE DEFENSE that the
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`Plaintiff has failed to establish ownership and control of the Note and as such, does not have
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`standing to commence the suit. This Defense is without merit.
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`Where a plaintiff possesses a note that, on its face or by allonge, contains an indorsement in
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`blank or bears a special indorsement payable to the order of the plaintiff, such a party is a holder of
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`the note and entitled to enforce the instrument. Deutsche Bank Natl. Trust Co. V. Monica, 131
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`A.D.3d 737, 739 (3rd Dept. 2015).
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`Under the UCC’s definition of a “holder” of an instrument, possession is a significant factor
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`and the possessor is a holder without regard to the legality 0r propriety of his possession.(emphasis
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`added) Stewart Becker Ltd. V. Horowitz, 405 N.Y.S.2d 571, 574 (Suffolk County 1978); NY CLS
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`UCC sec. 1—201(21)(A).
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`Delivery to Plaintiff is inferred from the possession of the Note by Plaintiff as a matter of
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`law. Aurora Loan Services LLC V. Taylor, 25 NY3d 355, 366 (2015).
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`The Affidavit in Support of Summary Judgment of DAVID NILSEN is legally sufficient to
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`establish the Plaintiff’s standing, as it confirms the date specific, pre-complaint possession of the
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`original Note and supplies a copy of the original Note endorsed to the Plaintiff. Wells Fargo Bank
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`NA. v Parker 125 AD3d 848 (2nd Dept 2015); Wells Fargo Bank NA. V Arias, 121 AD3d 973 (2nd
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`Dept 2014).
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`See also, Wells Fargo Bank v Zelaya, 18 N.Y.S. 3d 582 (Suffolk County 2015);
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`Aurora Loan Services LLC v Mercado, 2014 NY. Misc. LEXIS 5324 (Suffolk County 2014); Wells
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`Fargo Bank NA v Gaymon, 2015 NY Misc. LEXIS 2032 (Suffolk County 2015).
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`Any “lack of detail of delivery” argument regarding the original Note has been clearly
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`and soundly rejected by the Second Department.
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`As the Second Department stated in JPMorgan Chase Bank Nat. Assn. v. Weinberger,
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`142 AD. 3d 643, 645, 37 N.Y.S.3d 286 (2nd Dept. 2016):
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`There is simply no requirement that an entity in possession ofa negotiable instrument
`that has been endorsed in blank must establish how it came into possession of the
`instrument in order to be able to enforce it. Moreover, it is unnecessary to give
`factual details ofthe delivery in order to establish that possession was obtained prior
`to a particular date. (Internal citations omitted)
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`A copy of the original Note indorsed to the Plaintiff is attached to the Complaint. This
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`fact alone is sufficient to afford Plaintiff standing. Nationstar Mtge. v. Catizone, 127 A.D.3d
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`1151, 9 N.Y.S. 3d 315 (2nd Dept 2015). Indeed, the Plaintiff s attachment of a copy of the original
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`Note to the Complaint establishes prima facie possessiOn ofthe Note. Emigrant Bank v. Larizza, 129
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`A.D.3d 904, 13 N.Y.S.3d 129 (2m:l Dept 2015). The simple fact is, as a matter of law, if the
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`Plaintiff’ s attorney has the Note and attaches a copy of same to the Complaint, Plaintiffhas standing.
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`PennyMac Corp. v. Chavez, 2016 NY Slip Op 07938 (2“Cl Dept. 2016); JPMorgan Chase Bank Nat.
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`Assn. v. Weinberger, 142 A.D. 3d 643, 645, 37 N.Y.S.3d 286 (2“‘3 Dept. 2016).
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`Plaintiff has standing in this case.
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`18.
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`THAT Defendants raise as a THIRD AFFIRMATIVE DEFENSE that MERS is an
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`improper holder ofMortgages, all alleged assignments or transfers from it are also improper and that
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`Plaintiff s standing to commence this suit is dubious. However, the existence of a MERS
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`Assignment is no legal impediment to Plaintiff s standing to foreclose in this case. Deutsche Bank
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`National Trust Company as Trustee v. Pietranico, 928 N.Y.S.2d 818 (Suffolk County 201 1). Indeed,
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`as a matter of law, the assignment ofthe Note was effectuated by physical delivery ofthe Note prior
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`to the 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 ofNew York Mellon Trust Company NA
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`v Sachar, 943 N.Y.S.2d 893 (First Dept. 2012). It is settled law that any disparity between the holder
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`of the Note and the mortgagee of record does not stand as a bar to a foreclosure action. Aurora Loan
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`Services LLC v. Taylor, 25 NY3d 355, 362 (2015). Finally, Defendants do not have standing to
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`challenge the mortgage assignment in the first instance. Fannie Mae V. Youkelsone 303 AD.
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`2d 546 (2“d Dept 2003).
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`This Defense is without merit.
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`19.
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`THAT Defendants raise as a FOURTH AFFIRMATIVE DEFENSE that MERS was
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`merely a nominee for ENCORE CREDIT CORP, related to the subject Mortgage, would only have
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`standing to assign the right to foreclose when it holds or is assignee of the Note and the Mortgage
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`and that the assignment from MERS to the Plaintiff is insufficient to convey standing to commence
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`the instant action. However, as aforestated, Plaintiff has evidenced a physical delivery of the Note
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`to the foreclosing Plaintiff prior to commencement and has standing. Aurora Loan Servs. LLC v
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`Taylor, 25 N.Y.3d 355, 361 (2015).
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`20.
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`THAT Defendants raise as a FIFTH AFFIRMATIVE DEFENSE that the purported
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`Assignment to Plaintiff is defective and therefore lacks standing. However, the Assignment is a
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`redundant distraction, since Plaintiff had possession of the original Note indorsed in blank and
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`Mortgage by delivery and therefore has standing. Defendants do not have standing to challenge the
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`mortgage assignment in the first instance. Fannie Mae V. Youkeelsone 303 AD. 2d 546(2nd Dept
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`2003). This Defense is without merit.
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`21.
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`THAT Defendants raise as a SIXTH AFFIRMATIVE DEFENSE that the Plaintiff
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`failed to join an indispensable party, specifically LPMI (Lender Private Mortgage Insurance).
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`However, Defendants fail to specify in what way this party is necessary to the instant action.
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`Defenses that merely plead conclusions of law without supporting facts are insufficient and
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`fatally deficient. Becher v Feller 884 NYS2d 83 (2“d Dept 2009). Further, a purported failure to
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`join a necessary party is not a Viable defense to foreclosure. See E*Trade Bank V Macpherson, 2013
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`NY Slip Op 30414(U); 2013 NY. Misc. LEXIS 794 (Suffolk Co. Sup. Ct. 2013); Amalgamated
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`Bank v. Fort Tflon Tower SPE LLC, 2011 NY Slip Op 33461(U); 2011 NY. Misc. LEXIS 6287
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`WY Sup. Ct. 2011). “The absence of a necessary party in a mortgage foreclosure action simply
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`leaves that party's rights unaffected by the judgment of foreclosure and sale.” (Glass V. Estate of
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`Q9151, 48 A.D.3d 746, 747; 853 N.Y.S.2d 159 (2nd Dep’t 2008). This defense is wholly without merit
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`and should be stricken. If Defendants are attempting to concoct a collateral source rule argument as
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`a defense to this foreclosure action, they are simply wrong. Generally, New York followed the
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`common law rule that jury verdicts in personal injury actions cannot be reduced by the amount of
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`payments made to a plaintiff from collateral sources. Firrnes v. Chase Manhattan Automotive Fin.
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`_C__orp_. 50 A.D.3d 18, 20 (App. Div 2008). The collateral source rule was codified in CPLR 4545
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`which by its own express terms applies only to actions for personal injury, property damage and
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`wrongful death. The collateral source rule is very limited in application in New York and has no
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`applicability whatsoever to foreclosure actions. None.
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`Defendants further allege the purported outstanding balance asserted by Plaintiff is not an
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`accurate reflection ofthe total amount owed by Defendants, when set offby insurance payoffs, credit
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`default swaps and settlements. However, Defendants attach no admissible evidence whatsoever of
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`any such credits or payment made in accordance with the mortgage that would defeat Plaintiff’ 3
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`request for relief herein. See General Electric Capital Corporation v Ocean Marine Inc.= et al., 201 1
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`NY Slip Op 33154(U); 2011 NY. Misc. LEXIS 5809 (Nassau Co. Sup. Ct. 2011) (holding that the
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`affirmative defense of payment was insufficient to survive Summary Judgment in a foreclosure
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`proceeding, as answering defendants failed to provide support for the defense).The existence of a
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`dispute as to the exact amount owed by a mortgagor to a mortgagee does not preclude the issuance
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`of a summary judgment directing the sale of the mortgaged property. Long Island Savings Bank of
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`Centereach FSB V Denkensohn, 222 A.D.2d 659 (2nd Dept 1995); Crest/Good Manufacturing Co.
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`Inc v Baumann, 160 A.D.2d 831 (2nd Dept 1990). Any dispute as to the exact amount owed plaintiff
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`pursuant to the mortgage and note, may be resolved after a reference pursuant tow 1321. This
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`Defense is again without merit.
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`22.
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`THAT this application is being submitted after the matter was released from the
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`mandatory Foreclosure Settlement Conference Part on October 19, 2016, with Plaintiff given leave
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`to resume prosecution of this action.
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`23.
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`THAT all of the proceedings herein have been regular and in conformity with the
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`rules and practice of the Court and no previous application has been made for the relief requested
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`herein.
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`CONCLUSION
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`WHEREFORE, affirmant respectfully prays for an Order dismissing the Answer of
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`Defendants DAVID E. PADULA and SHARYN L. PADULA, directing the entry of Summary
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`Judgment, substituting the Plaintiff herein, and entering default against
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`the non-answering
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`Defendants, and appointing a Referee to compute and report, all as set forth in the proposed Order
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`of Reference simultaneously served with this motion, and for such other and further relief as the
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`Court deems just.
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`Dated: June 5, 2017 MICHAEL S. HANUSEK ESQ.
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`
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`FEIN, SUCH & CRANE, LLP
`Attorneys for Plaintiff
`Office and PO. Address
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`1400 Old Country Road, Suite C103
`Westbury, New York 11590
`Telephone No. (516) 394-6921
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