Opinion
No. 13013/2012.
08-08-2014
WELLS FARGO BANK, N.A., Plaintiff, v. William MUSKOPF, GMAC Mortgage Corporation, d/b/a Ditech.Com, The Board Of Managers of the Anchorage Condominium, and John Doe # 1 to John Doe # 25 said names being fictitious, the persons or parties intended being persons, parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants.
Hogan Lovells US, LLP, New York City, for Plaintiff. Kenneth S. Pelsinger, Esq., Levittown, for Defendant, Muskopf. Albanese & Albanese, Esqs., Garden City, for defendant, Board of Managers of the Anchorage Condo.
Hogan Lovells US, LLP, New York City, for Plaintiff.
Kenneth S. Pelsinger, Esq., Levittown, for Defendant, Muskopf.
Albanese & Albanese, Esqs., Garden City, for defendant, Board of Managers of the Anchorage Condo.
Opinion
THOMAS F. WHELAN, J.
Upon the following papers numbered 1 to 14 read on this motion by the plaintiff for accelerated judgments, substition and/or deletion of party defendants and the appointment of a referee to compute; Notice of Motion/Order to Show Cause and supporting papers 1–6; Notice of Cross Motion and supporting papers; Answering papers 7–12; Reply papers 13–14; Other; (and after hearing counsel in support and opposed to the motion)the instant motion, it is,
ORDERED that this motion (# 001) by the plaintiff for accelerated judgments on its complaint and an order of reference is considered under CPLR 3212, 3215 and RPAPL § 1321 and is granted.
The plaintiff commenced this action on April 26, 2012 to foreclose a January 28, 2004 mortgage given on real property situated in Copaigue, New York by defendant Muskopf to secure a mortgage note of the same date executed by such defendant in favor of First Magnus Financial Corporation.The plaintiff alleges that a default in payment occurred on October 1, 2011, and that such default was a continuing one at the time of the filing of the complaint.
Issue was joined by service of an answer by the obligor/mortgagor defendant dated May 31, 2012. Therein, defendant Muskopf asserts seventeen affirmative defenses, several of which, challenge the standing of the plaintiff and forty-three counterclaims which are also denominated as affirmative defenses. Defendant Board of Managers of the Anchorage Condominium appeared herein without answering by service of a notice of appearance and demand for notice of certain documents.
By the instant motion, the plaintiff moves for summary judgment dismissing the affirmative defenses and counterclaims advanced in the answer of defendant Muskopf and for summary judgment on its complaint against such defendant. In addition, the plaintiff seeks an order identifying a person served as John Doe # 1 pursuant to CPLR 2018 and the deletion of the remaining unknown defendants and an amendment of the caption to reflect same. The plaintiff further seeks an order fixing the defaults in answering of the newly identified defendant and of known defendants listed in the caption, other than answering defendant Muskopf, together with the appointment of referee to compute.
The motion is opposed by defendant Muskopf, who asserts in his affidavit in opposition the following: 1) that the plaintiff improperly “forced placed” overly expensive insurance on the subject premises which allegedly caused him to default in his payment obligations; 2) that the plaintiff is not now and was not the owner the owner of the subject note and mortgage at the time of the commencement of this action under the terms of a written assignment executed by Mortgage Electronic Registration Systems, Inc. [hereinafter “MERS]; and 3) that the plaintiff failed to comply with the contractual notice of default and the ninety-day pre-foreclosure notice requirements imposed by RPAPL § 1304. He concludes by urging the court to deny the plaintiff's motion for these reasons and those advanced in the memorandum of law submitted by his defense counsel. Therein, counsel advances only forty-four of the sixty total numbered affirmative defenses and thirty-two of the forty-three counterclaims asserted in the answer.For the reasons stated below, the motion is granted.
“Entitlement to a judgment of foreclosure may be established, as a matter of law, where a mortgagee produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact” (Zanfini v. Chandler, 79 AD3d 1031, 912 N.Y.S.2d 911 [2d Dept 2010], quoting HSBC Bank USA v. Merrill, 37 AD3d 899, 900, 830 N.Y.S.2d 598 [2d Dept 2010] ; see Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 986 N.Y.S.2d 843 [2d Dept.2014] ; Bank Nat. Ass'n v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012] ; HSBC Bank v. Shwartz, 88 AD3d 961, 931 N.Y.S.2d 528 [2d Dept 2011] ; US Bank N.A. v. Eaddy, 79 AD3d 1022, 1022, 914 N.Y.S.2d 901 [2010] ). Where, as here, an answer served includes the defense of standing or lack of capacity to sue, the plaintiff must further establish its standing to succeed on a motion for summary judgment (see Peak Financial Partners, Inc. v. Brook, 119 AD3d 539, 987 N.Y.S.2d 916 [2d Dept 2014] ; Kondaur Capital Corp. v. McCary, 115 AD3d 649, 981 N.Y.S.2d 547 [2d Dept 2014] ; U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 890 N.Y.S.2d 578 [2d Dept 2009] ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 242, 837 N.Y.S.2d 247 [2d Dept 2007] ).
The foregoing rules are discernible from the general precept that the standing of a plaintiff is not an element of his or her claim (see id., at 42 AD3d 250; see also Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 986 N.Y.S.2d 843 [2d Dept 2014] ). This is particularly evident in the mortgage foreclosure arena wherein recent appellate case authorities have repeatedly held that a lack of standing is merely an affirmative defense which must be timely raised by a defendant possessed of such defense or it is waived (see CPLR 3018[b] ; CPLR 3211[e] ; JP Morgan Mtge. Acquisition Corp. v. Hayles, 113 AD3d 821, 979 N.Y.S.2d 620 [2d Dept 2014] ; Deutsche Bank Trust Co. Americas v. Cox, 110 AD3d 760, 973 N.Y.S.2d 662, [2d Dept 2013 U.S. Bank Natl. Ass'n v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012] ; Capital One, N.A. v. Knollwood Prop. II, LLC, 98 AD3d 707, 950 N.Y.S.2d 482 [2d Dept 2012] ; Countrywide Home Loans, Inc. v. Delphonse, 64 AD3d 624, 883 N.Y.S.2d 135 [2d Dept 2009] ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, supra ). The defense of standing is not jurisdictional in nature (see Bank of New York v. Mulligan, 119 AD3d 716, 989 N.Y.S.2d 295 [2d Dept 2014] ; Wells Fargo Bank, N.A. v. Gioia, 114 AD3d 766, 980 N.Y.S.2d 535 [2s Dept 2014] ; Citimortgage, Inc. v. Friedman, 109 AD3d 573, 970 N.Y.S.2d 706 [2d Dept.2013] ; HSBC Bank USA, N.A. v.. Taher, 104 AD3d 815, 962 N.Y.S.2d 301 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Pietranico, 102 AD3d 724, 957 N.Y.S.2d 868 [2d Dept 2013] ; US Bank Natl. Ass'n v. Tate, 102 AD3d 859, 958 N.Y.S.2d 722 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Hunter, 100 AD3d 810, 954 N.Y.S.2d 181 [2d Dept 2012] ; Bank of New York v. Alderazi, 99 AD3d 837, 951 N.Y.S.2d 900 [2d Dept 2012] ; U.S. Bank Natl. Ass'n. v. Denaro, 98 AD3d 964, supra ; U.S. Bank v. Emmanuel, 83 AD3d 1047, 921 N.Y.S.2d 320 [2d Dept 2011] ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 242–244, supra ). The prosecution of a claim by one without standing is not an actionable wrong, as the claimant may prevail even in the absence of standing and such prosecution does not vitiate or otherwise affect the validity of the mortgage (see Homar v. American Home Mortg. Acceptance, Inc., 119 AD3d 900, 2014 WL 3732875 [2d Dept 2014] ; US Bank, NA v. Reed, 38 Misc.3d 1206, 967 N.Y.S.2d 870 [Sup.Ct. Suffolk Cty.2013] ).
“In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” (Citimortgage, Inc. v. Friedman, 109 AD3d 573, 970 N.Y.S.2d 706 [2d Dept 2013], quoting Bank of N.Y. v. Silverberg, 86 AD3d 274, 279, 926 N.Y.S.2d 532 [2d Dept 2011] ; see W & H Equities LLLC v. Odums, 113 AD3d 840, 978 N.Y.S.2d 910 [2d Dept 2014] ). Under the principal/incident rule, a mortgage may not stand separate from the note evidencing the principal debt or obligation because the mortgage is merely security therefor (see Weaver Hardware Co. v. Solomovitz, 235 N.Y. 321, 331–332, 139 NE 353 [1923];US Bank of N.Y. v. Silverberg, 86 AD3d 274, 280, supra ). Accordingly, a mortgage passes as an incident of the note upon such note's written assignment, physical delivery or its indorsement and delivery (see Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931, 969 N.Y.S.2d 82 [2d Dept 2013] ; One West Bank FSB v. Carey, 104 AD3d 444, 960 N.Y.S.2d 306 [1st Dept 2013] ; Deutsche Bank Trust Co. Am. v. Codio, 94 AD3d 1040, 943 N.Y.S.2d 545 [2d Dept 2012] ; GRP Loan, LLC v. Taylor, 95 AD3d 1172, 945 N.Y.S.2d 336 [2d Dept 2012] ). In all cases wherein the plaintiff is one other than the original mortgage lender, a valid transfer of the note, which effects a valid transfer of the mortgage under the principal/incident rule, will resolve the standing issue in favor of the plaintiff (see Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931, supra; One West Bank FSB v. Carey, 104 AD3d 444, supra; US Bank Natl. Ass'n v. Cange, 96 AD3d 825, 947 N.Y.S.2d 522 [2d Dept 2012] ; Deutsche Bank Trust Co. Am. v. Codio, 94 AD3d 1040,supra; Bank of New York Mellon Trust Co. NA v. Sachar, 95 AD3d 695, 943 N.Y.S.2d 893 [1st Dept 2012] ).
Holder status of a note and mortgage is established where the plaintiff possesses the mortgage note which bears, on its face or by allonge, a special indorsement payable to the order of the plaintiff or where it takes possession of a mortgage note that contains an indorsement in blank similarly affixed (see UCC § 1–201[20] ; § 3–202; § 3–204; § 9–203[g]; Spielman v. Manufacturers Hanover Trust Co., 60 N.Y.2d 221, 469 N.Y.S.2d 69 [1983];Nationstar Mortgage, LLC v. Davidson, 116 AD3d 1294, 983 N.Y.S.2d 705 [3d Dept 2014] ; Citimortgage, Inc. v. Friedman, 109 AD3d 573,supra; Deutsche Bank Trust Co. Am. v. Codio, 94 AD3d 1040,supra; Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 AD3d 674, 838 N.Y.S.2d 622 [2d Dept.2007] ; First Trust Natl. Ass'n v. Meisels, 234 A.D.2d 414, 651 N.Y.S.2d 121 [2d Dept 1996] ; Deutsche Bank Natl. Trust Co. v. Pietranico, 33 Misc.3d 528, 928 N.Y.S.2d 818 [Sup.Ct. Suffolk County 2011], aff'd, 102 AD3d 724, 957 N.Y.S.2d 868 [2d Dept 2013] ). New York's Uniform Commercial Code (UCC) § 1–201(20) defines “holder” as “a person who is in possession of a document of title, an instrument or an investment security drawn, issued or indorsed to him or to his order or to bearer or in blank.” A person becomes the holder of an instrument through its negotiation to him or her (see UCC § 3–202[1] ). Where the instrument is payable to order, it is negotiated by delivery and all necessary indorsements and where it is payable to the bearer by virtue of an indorsement in blank or otherwise, delivery alone is sufficient (see id. ).
Appellate case authorities have recently instructed that delivery of a note may be established in the following manner: 1) physical delivery of the note to the plaintiff or its custodial agent prior to the commencement of the action (see Kondaur Capital Corp. v. McCary, 115 AD3d 649,supra; Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931, 932, supra ); 2) possession of an indorsed note by the indorsee on a specific date that is prior to the commencement of the action, from which it may be reasonably inferred that physical delivery of the note was made to the plaintiff by the indorsee (see Aurora Loan Serv., LLC v. Taylor, 114 AD3d 627, 980 N.Y.S.2d 475 [2d Dept 2014] ); or 3) pre-commencement possession of the note by a custodial agent of a trustee plaintiff named in a pooling and servicing agreement, the relevant portions of which are put before the court with a redacted mortgage loan schedule identifying the subject loan as one in the pool of loans securitized under the pooling and servicing agreement (see HSBC Bank USA, Nat. Ass'n v. Sage, 112 AD3d 1126, 977 N.Y.S.2d 446 [3d Dept 2013] ). Constructive delivery of an instrument such as a promissory note to an agent may thus effect a valid transfer by delivery (see Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931,supra; Depew Dev., Inc. v. AT & A Trucking Corp., 210 A.D.2d 974, 621 N.Y.S.2d 242 [4th Dept 1994] ; Wolfin v. Security Bank, 170 AD 519, 156 NYS 474, 476 [1915];see also Corporacion Venezolana de Fomento v. Vintero Sales Corp., 452 F.Supp. 1108 [SDNY 1978] ). The essential element of a constructive delivery is that it be made with the unmistakable intention of transferring title to the instrument (see id at 1117).
Here, the plaintiff's moving papers established, prima facie, the plaintiff's entitlement to summary judgment on its claims for foreclosure and sale against the answering defendant as such papers included copies of the mortgage, and the note executed by defendant Muskopf together with due evidence of a default under the terms thereof (see CPLR 3212 ; RPAPL § 1321 ; Plaza Equities, LLC v. Lamberti, 118 AD3d 688,supra; U.S. Bank Natl. Assn. v. Denaro, 98 AD3d 964, supra ). The moving papers further established, prima facie, that the plaintiff has standing to prosecute this action, as it was the owner of the note and mortgage at the time of the commencement of the action because the note, bearing a special indorsement by the original lender in favor of the plaintiff, was physically delivered to the plaintiff when it purchased the loan in February of 2004 (see Aurora Loan Servs., LLC v. Taylor, 114 AD3d 627, 628 [2d Dept 2014] ; Citimortgage, Inc. v. Friedman, 109 AD3d 573, supra Deutsche Bank Trust Co. Americas v. Codio, 94 AD3d 1040, supra; see also Central Mortg. Co. v. McClellan, ––– AD3d, 2014 WL 3732901 [2d Dept 2014] ; Deutsche Bank Nat. Trust Co. v. Whalen, 107 AD3d 931, 969 N.Y.S.2d 82 [2d Dept 2013] ; Deutsche Bank Nat. Trust Co. v. Trentino, 2014 N.Y. Slip Op. 30775(U) 2014 WL 1325304 [Sup.Ct. Suffolk Cty.2014] ). The moving papers further established, prima facie, that none of defendant Muskopf's sixty affirmative defenses and forty-three counterclaims are meritorious (see Bank of New York Mellon Trust Co. v. McCall, 116 AD3d 993, 985 N.Y.S.2d 255 [2d Dept 2014] ).
It was thus incumbent upon answering defendant Muskopf to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of an affirmative defense asserted in his answer or otherwise available to him (see Flagstar Bank v. Bellafiore, 94 AD3d 1044, 943 N.Y.S.2d 551 [2d Dept 2012] ; Grogg v. South Rd. Assocs., 74 AD3d 1021, 907 N.Y.S.2d 22 [2d Dept 2010] ; Wells Fargo Bank v. Karla, 71 AD3d 1006, 896 N.Y.S.2d 681 [2d Dept 2010] ; Aames Funding Corp. v. Houston, 44 AD3d 692, 843 N.Y.S.2d 660 [2d Dept 2007] ). Notably, self-serving and conclusory allegations do not raise issues of fact and do not require plaintiff to respond to alleged affirmative defenses which are based on such allegations (see Charter One Bank, FSB v. Leone, 45 AD3d 958, 845 N.Y.S.2d 513 [3d Dept 2007] ; Rosen Auto Leasing, Inc. v. Jacobs, 9 AD3d 798, 780 N.Y.S.2d 438 [3d Dept 2004] ). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movants' papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 [1975];see also Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 AD3d 606, 957 N.Y.S.2d 88 [1st Dept 2012] ; Argent Mtge. Co., LLC v. Mentesana, 79 AD3d 1079, 915 N.Y.S.2d 591[2d Dept 2010] ).
A review of the opposing papers submitted by defendant Muskopf reveals no such questions of fact were raised. Defendant Mudkopf's failure to address affirmative defenses numbered Third, Tenth, Eleventh, Fourteenth and to address the affirmative defenses and counterclaims numbered Nineteenth/Second, Twentieth/Third, Twenty Fifth/Eight and Twenty Fifth/Ninth, Twenty Six/Tenth, Twenty Seventh/Twelfth and Twenty Seventh/Thirteenth, Twenty Eighth/Fourteenth, Forty Seventh/Thirty Sixth, Fiftieth/Thirty Ninth, Fifty First/Fortieth and Fifty Second/Forty First counterclaims warrants an award of summary judgment dismissing them as abandoned under the last three appellate case authorities cited directly above. Nor did defendant Muskopf establish, by the tender of proof in admissible form, that any of the affirmative defenses and/counterclaims advanced in the memorandum of law and the unaffirmed statement of his attorney denominated as “Defendant's Response in Opposition to Plaintiff/Counterclaim Defendants's Motion for Summary Judgment” have plausible merit and that a genuine question of fact exists with respect thereto, so as to defeat the plaintiff's prima facie showing of its entitlement to the summary judgment requested by it. In these documents, defense counsel merely parrots many of the factual assertions advanced in the unverified answer of his client in an effort to establish the viability of the various defenses and/or counterclaims which he asserts in opposition to the plaintiff's motion. However, the absence of any personal knowledge of the facts alleged or other proof thereof in admissible form with respect to the defenses and/or counterclaims asserted by counsel alone, renders his submissions insufficient to establish the viability of the defenses asserted in opposition to the instant motion (see Flagstar Bank v. Titus, ––– AD3d –––– 2014 WL 3843991 [2d Dept 2014] ; Aames Capital Corp. v. Ford, 294 A.D.2d 134, 740 N.Y.S.2d 880 [1st Dept 2002] ).The court is thus left with the defenses and claims asserted by defendant Muskopf in his affidavit in opposition to the plaintiff's motion as amplified in the memorandum of law of his cousnel. Addressed first is defendant Muskopf's complaints about the plaintiff's purported failures to comply with the contractual and statutory notices of default requirements imposed upon it. After admitting his execution and delivery of the mortgage note dated January 28, 2004 in favor of the original lender, First Magnus Financial and of his execution and delivery of the mortgage securing said note to First Magnus' nominee, MERS, defendant Muskopf denies that the plaintiff sent “certain statutorily required notices of foreclosure before institution this action” (see ¶ 4 of Muskopf's affidavit in opposition). He revisits this issue once more in ¶ 9 of his affidavit, wherein he alleges that the “Plaintiff failed to provide me with the Notice of Default and Intent to accelerate as required by and/or that complies with the subject mortgage. Plaintiff also failed to provide the 90–day pre-foreclosure notice by certified and regular mail, binder [sic] RPAPL § 1304. In effect, plaintiff failed to provide the tracking number of the certified (or registered) piece of mail”.
However, the moving papers of the plaintiff established that it satisfied all pre-foreclosure notice requirements by its mailing of the 90 day, pre-foreclsoure notice of default required by RPAPL § 1304 to defendant Muskopf (see Wachovia Bank, Nat. Ass'n v. Carcano, 106 AD3d 724, 965 N.Y.S.2d 516 [2d Dept 2013] ). In addition, the moving papers established that the provisions of RPAPL § 1304 are not applicable since the premises were found by a quasi-judicial officer assigned to the specialized mortgage foreclosure conference part to be rented and thus not occupied by defendant Muskopf thus rendering him ineligible for the newly enacted statutory protections afforded to owners of occupied residential properties (see RPAPL § 1304[3] ; RPAPL § 1304[5][iii] ; Marcon Affiliates, Inc. v. Ventra, 112 AD3d 1095, 977 N.Y.S.2d 438 [3d Dept 2013] ; see also Wells Fargo Bank, NA v. Ostiguy, 119 AD3d 1266, 989 N.Y.S.2d 411 [3d Dept 2014] ). In any event, the court finds that the vague and equivocal factual assertions contained in the affidavit of defendant Muskopf do not constitute sufficient denials of receipt of either the contractual notice of default and acceleration or of the statutory 90 day notice required by RPAPL § 1304 and are otherwise insufficient to raise any question of fact as to the defendant's possession of a defense predicated upon a failure of any notice condition precedent to suit (see Grogg v. South Rd. Assoc., L.P., 74 AD3d 1021, 1021–1022, 907 N.Y.S.2d 22 [2d Dept 2010] ; see also Emigrant Mortgage Company, Inc., v. Persad, 17AD3d 676, 985 N.Y.S.2d 608 [2d Dept 2014] ).
Equally unavailing is defendant Muskopf's asserted standing defense which rests solely upon the purported invalidity of the January 24, 2012 written assignment of mortgage to the plaintiff by MERS, as nominee of the original lender. Although this assignment was executed some eight years after the plaintiff's acquisition of the loan by purchase and its receipt of the specially indorsed note by delivery in February of 2004, the defendant and his counsel contend that defects in such assignment, due, among other things, to the absence of authority on the part of MERS to assign the note and/or mortgage, caused an illegal split of the mortgage from the note which purportedly leaves the plaintiff without standing to prosecute its claims. However, the law is clear that where, as here, the plaintiff acquired the note by physical delivery prior to the commencement of the action and prior to any subsequent written assignment by MERS, who was the mortgagee of record under the terms of the mortgage, the validity or invalidity of such subsequent assignment is irrelevant to the issue of the plaintiff's standing (see Deutsche Bank Nat. Trust Co. v. Whalen, 107 AD3d 931, supra; see also Suntrust Mortg., Inc. v. Andriopoulos, 39 Misc.3d 1208, 971 N.Y.S.2d 75 [Sup.Ct. Suffolk Cty.2013] ). The court thus finds that defendant Muskopf and his counsel failed to sustain the burden of establishing that a genuine question of fact exists with respect to issue of the plaintiff's standing to prosecute its clams for foreclosure and sale in this action.Defendant Muskopf's last asserted defense is that his default in payment was “caused” by the plaintiff's conduct in placing “overly expensive insurance on the subject premises”. Defense counsel amplifies this by claim by characterizing such conduct as a breach of the covenant of good faith and fair dealing that is implied in every contract in New York and asserts such claim is sufficiently actionable to warrant dismissal of the complaint and/or the recovery of damages as alleged in the defendant's Eighteenth Affirmative defense and First counterclaim.
The court, however, rejects these contentions. It is well settled law that a lender has no fiduciary or other heightened duties owing to a borrower in transactions arising from a credit transaction (see Rakylar v. Washington Mut. Bank, 51 AD3d 995, 858 N.Y.S.2d 759 [2d Dept 2008] ; Standard Fed. Bank v. Healy, 7 AD3d 610, 777 N.Y.S.2d 499 [2d Dept 2004] ). “The fact that the plaintiff sought and received a loan [that] he [allegedly] could not afford does not mean that he can now proceed against the party that made his [purported] mistake possible” (Patterson v. Somerset Investors Corp., 96 AD3d 817, 946 N.Y.S.2d 217 [2d Dept 2012] ; see also Aydin v. Opteum Financial Services, LLC, 2014 WL 2612516 [E.D .N.Y 2014] ). Moreover, evidence that the plaintiff's decision to lend money to a mortgagor was unwise for any reason is insufficient by itself to raise a triable issue of fact as to whether the plaintiff engaged in fraudulent or unconscionable conduct so as to defeat a motion for summary judgment in a foreclosure action (see Argent Mtge. Co., LLC v. Mentesana, 79 AD3d 1079, 915 N.Y.S.2d 591 [2d Dept 2010] ). This is especially so where, as here, the defendant accepted the benefits of the contract for a significant length time but after defaulting, urges a defense based upon the plaintiff's purportedly wrongful conduct (see Feinstein v. Levy, 121 A.D.2d 499, 503 N.Y.S.2d 821 [1st Dept 1986] ; Ricca v. Ricca 57 AD3d 868, 869, 870 N.Y.S.2d 419 [2d Dept 2008] ). Moreover, the amount of the insurance was set forth in the mortgage loan documents and defendant Muskopf is charged with knowledge thereof irrespective of whether he read or understood the import of that term (see Patterson v. Somerset Investors Corp., 96 AD3d 817,supra; Brandywine Pavers, LLC v. Bombard, 108 AD3d 1209, 970 N.Y.S.2d 653 [4th Dept 2013] ; Marciano v. DCH Auto Group, ––– FSupp2d ––––, 2014 WL 1612976 [S.D.NY 2014] ).
The court thus finds that no genuine question of fact was raised by defendant Muskopf's submissions in opposition to the plaintiff's motion, the existence of which was necessary to defeat the plaintiff's prima facie showing of its entitlement to the summary judgment requested by it. Accordingly, those portions of this motion wherein the plaintiff seeks summary judgment on its complaint against the answering defendant and the dismissal of all affirmative defenses and counterclaims asserted in his answer, are thus granted.The plaintiff's demand for an order partially identifying an individual (Francine Micale) found at the mortgaged premises for John Doe # 1 is granted pursuant to CPLR 1024. Also granted is the plaintiff's request for an order dropping the remaining unknowns as party defendants (see CPLR 1003 ). The caption of this action is hereby amended to reflect these changes to the extent set forth in the order appointing the referee issued with this order.
The moving papers further established the defaults in answering on the part of the remaining defendants, including the newly identified defendant, Francine Micale, who was served as John Doe # 1, as neither of these defendants appeared herein by answer. Accordingly, the defaults of these defendants are hereby fixed and determined. Since the plaintiff has been awarded summary judgment against the answering defendant and has established a default in answering by the remaining defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see RPAPL § 1321 ; Bank of East Asia, Ltd. v. Smith, 201 A.D.2d 522, 607 N.Y.S.2d 431 [2d Dept 1994] ; Vermont Fed. Bank v. Chase, 226 A.D.2d 1034, 641 N.Y.S.2d 440 [3d Dept 1996] ; LaSalle Bank, NA v. Pace, 31 Misc.3d 627, 919 N.Y.S.2d 794 [Sup.Ct. Suffolk Cty.2011], aff'd, 100 AD3d 970, 955 N.Y.S.2d 161 [2d Dept 2012] ). Those portions of the instant motion wherein plaintiff demands such relief are thus granted.
The moving papers further established that a conference of the type mandated by the Laws of Laws of 2008, Ch. 472 § 3–a as amended by the Laws of 2009 Ch. 507 § 10 or by CPLR 3408 was previously conducted at which it was determined that the premises were rented and thus did not qualify for settlement conference procedures afforded by CPLR 3408, and that no further conferences are required under any statute, law or rule (see Brandywine Pavers, LLC v. Bombard, 108 AD3d 1209, supra ). These circumstances, coupled with the awards of accelerated judgments against all defendants warrant the granting of the plaintiff's demand for an order appointing a referee to compute amounts due under the subject mortgage.
Proposed Order appointing referee to compute, as modified by the court, has been signed simultaneously herewith.