Upon the E-file document list numbered 74 to 101 and 103 to 124 read and considered on the motion filed by plaintiff for an order granting it, inter alia, summary judgment on its complaint, as against defendant Dana Grace Johnson, appointing a referee to compute the amount due, and dismissing the counterclaims of defendant Dana Grace Johnson and on the cross-motion of defendant Dana Grace Johnson for an order dismissing this foreclosure action; it is

ORDERED that the motion by plaintiff for an order granting it summary judgment on its complaint, and as against defendant Dana Grace Johnson, appointing a referee to compute the amount due, fixing the default of the non-answering parties, and dismissing the counterclaims of defendant Dana Grace Johnson, is granted, for the reasons set forth herein; and it is further

ORDERED that the motion by defendant Dana Grace Johnson for an order dismissing the complaint is denied, for the reasons set forth herein.

This is an action to foreclose a reverse mortgage, the surviving borrower having passed away on January 28, 2021, resulting in a default under the terms of the subject loan. Plaintiff commenced this action by the filing of a summons and complaint on April 6, 2022. Issue was joined through the service and filing of an answer with counterclaims on May 19, 2022 and plaintiff served and filed its reply on June 8, 2022. Plaintiff now moves for summary judgment and related relief. Defendant Dana Grace Johnson ("defendant") cross-moves to dismiss the complaint. Plaintiff opposes the cross-motion and replies to defendant's opposition.

Addressing first the cross-motion, defendant failed to assert plaintiff's lack of capacity as an affirmative defense in her answer and thus, she has waived it (see CPLR 3211 [e]; see also U.S. Bank Trust N.A. v Auxila,189 AD3d 1514, 1516, 139 NYS3d 236 [2d Dept 2020]; Household Bank (SB), N.A. v Mitchell, 12 AD3d 568, 785 NYS2d 116 [2d Dept 2004]). Notwithstanding, defendant failed to meet her burden under section 1312 of the Business Corporation Law ("BCL 1312") in support of this unpled defense. Specifically, defendant claims that plaintiff lacks capacity to commence this foreclosure action because it has not registered to do business in New York. Other than hearsay evidence from an "ACRIS" search of plaintiff's "involvement in the mortgage market" revealing that it was assigned mortgages and an "E-Courts" printout showing plaintiff has commenced other foreclosure actions to enforce its mortgages, defendant has submitted no evidence that plaintiff is "doing business" in New York (see JPMorgan Chase Bank, N.A. v Didato,185 AD3d 801, 802-803, 128 NYS3d 520 [2d Dept 2020] citing S & T Bank v Spectrum Cabinet Sales, 247 AD3d 373, 668 NYS2d 641 [2d Dept [*2]1998]). Therefore, defendant has failed to overcome the presumption that plaintiff is doing business in the state of its incorporation and not in New York (id.). Furthermore, under Banking Law § 200, a foreign banking corporation is authorized to commence actions in New York to enforce mortgages and notes that it acquires (see Flat Rock Mortgage Inv. Trust v Lott, 214 AD3d 1221, 187 NYS3d 122 [3d Dept 2023] citing Commonwealth Bank & Trust Co. v Tioga Mills, Inc., 78 AD2d 953, 953, 433 NYS2d 519 [3d Dept 1980]; see also Valley Nat. Bank v Soho Properties, Inc.,34 Misc 3d 1237 [A], 950 NYS2d 611 [Sup. Ct. New York County 2012] citing Commonwealth Bank & Trust Co. v Tioga Mills, Inc., supra [foreign banking corporations are excluded from BCL 1312]; Skylake State Bank v Solar Heat & Insulation of Cent. Utah,148 Misc 2d 32, 559 NYS2d 930 [Sup Ct. Bronx County 1990] citing Commonwealth Bank & Trust Co. v Tioga Mills, Inc., supra ["logically bringing a foreclosure action in the courts of the State is permitted under the Banking Law" and BCL 1312 cannot bar a lender from maintaining a foreclosure action in New York]). As such, this defense is dismissed.

As to the defense that plaintiff failed to comply with section 1304 of the Real Property Actions and Proceedings Law ("RPAPL 1304"), it is firmly established that this statute was enacted for the benefit and protection of borrowers. The statutory defense created by RPAPL 1302 (2) for noncompliance with RPAPL 1304 is a "personal defense" which cannot be raised by one who is a "stranger to the note and underlying mortgage" (HSBC Bank USA, Nat'l Ass'n v Tigani, 185 AD3d 796, 799, 128 NYS3d 522, 526 [2d Dept 2020]; HSBC Bank USA, N.A. v Shah,185 AD3d 794, 128 NYS3d 32 [2d Dept 2020]; see also Bank of New York Mellon v Ramsamooj, 194 AD3d 997, 144 NYS3d 600 [2d Dept 2021]; Hartford Funding, Ltd. v Harris, 193 AD3d 1035, 147 NYS3d 659 [2d Dept 2021];Citimortgage, Inc. v Etienne, 172 AD3d 808, 810, 101 NYS3d 59, 62 [2d Dept 2019]). As defendant is not the borrower, defendant has no standing to assert RPAPL 1304 as a defense and plaintiff was exempt from compliance under RPAPL 1304 (see U.S. Bank, N.A. v Lloyd-Lewis,205 AD3d 838, 165 NYS3d 864 [2d Dept 2022]). Therefore, this defense likewise is dismissed.

In regard to the defense that plaintiff lacks standing, the documentary evidence submitted by plaintiff demonstrates that this defense lacks merit. Plaintiff annexed to its complaint a copy of the note (see HSBC Bank USA, N.A. v Chabot,191 AD3d 648, 649-50, 140 NYS3d 584 [2d Dept 2021]), it submitted the assignments of the mortgage, each of which included an assignment of the subject note, the allonge to the note specifically provides that it is affixed and is a permanent part of the note, and plaintiff provided other indicia that the allonge was attached to the note when it came into possession of it and commenced this action (see U.S . Bank N.A. v Hunte,215 AD3d 887, 188 NYS3d 92 [2d Dept 2023]; M & T Bank v Bonilla, 215 AD3d 813, 188 NYS3d 509 [2d Dept 2023]; Bayview Loan Servicing, LLC v Caracappa,202 AD3d 900, 159 NYS3d 691 [2d Dept 2022]).

Defendant's remaining affirmative defenses and counterclaims are deemed waived due to her failure to raise them in opposition to plaintiff's motion or in support of her cross-motion (see US Bank N.A. v Okoye-Oyibo,213 AD3d 718, 183 NYS3d 485 [2d Dept 2023]; HSBC Bank USA, N.A. v Tigani, 185 AD3d 796, 128 NYS3d522 [2d Dept 2020]; Bosco Credit V Trust Series 2012-1 v Johnson, 177 AD3d 561, 115 NYS2d 5 [2d Dept 2019]).

By its submissions, plaintiff has established its prima facie entitlement to summary judgment on the complaint (see CPLR 3212; RPAPL §1321; U.S. Bank N.A. v Denaro, 98 [*3]AD3d 964, 950 NYS2d 581 [2d Dept 2012]); Capital One, N.A. v Knollwood Props. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]). "As a general rule, in an action to foreclose a reverse mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the reverse mortgage, the unpaid note, and evidence of the decedent's death, which constitutes a ground for acceleration of the debt under the terms of the reverse mortgage" (OneWest Bank, FSB v Simpson, 148 AD3d 920, 922, 49 NYS3d 523 [2d Dept 2017]; see James B. Nutter & Co. v John Doe 1, 197 AD3d 1106, 153 NYS3d 489 [2d Dept 2021]; CIT Bank, N.A. v Fernandez, 203 AD3d 876, 165 NYS3d 562 [2d Dept 2022]; Nationstar Mtge., LLC v Hoar, 209 AD3d 864, 177 NYS3d 88 [2d Dept 2022]). Here, plaintiff produced, inter alia, the note, mortgage, the assignments of mortgage and note, and proof of the passing of the borrowers of the subject reverse mortgage (see Branch Banking & Trust Co. v Myrthil,208 AD3d 445, 171 NYS3d 361 [2d Dept 2022]; Federal Home Loan Mortgage Corp. v Karasthathis, 237 AD2d 558, 655 NYS2d 631 [2d Dept 1997]; First Trust Natl. Assoc. v Meisels, 234 AD2d 414, 651 NYS2d 121 [2d Dept 1996]). Defendant has failed to raise an issue of fact in opposition. Furthermore, where, as here, a defendant fails to oppose arguments raised in a motion for summary judgment, the facts, as alleged in the moving papers, may be deemed admitted and there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel v Baiden, 36 NY2d 539, 369 NYS2d 667 [1975]; Argent Mtge. Co, LLC v Mentesana, 79 AD3d 1079, 915 NYS2d 591 [2d Dept 2010]).

By its moving papers, plaintiff also established the default in answering of all of the other named defendants and accordingly, the default of the remaining defendants is fixed and determined (see RPAPL § 1321; HSBC Bank USA, N.A. v Alexander, 124 AD3d 838, 4 NYS3d 47 [2d Dept 2015]; Wells Fargo Bank, NA v Ambrosov, 120 A.D3d 1225, 993 NYS2d 322 [2d Dept 2014]; U.S. Bank, N.A. v Razon, 115 AD3d 739, 981 NYS2d 571 [2d Dept 2014]; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 914 NYS2d 647 [2d Dept 2011]).

Based upon the foregoing, plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see RPAPL 1321; Green Tree Servicing, LLC v Cary, 106 AD3d 691, 965 NYS2d 511 [2d Dept 2013]; Ocwen Fed. Bank FSB v Miller, 18 AD3d 527, 794 NYS2d 650 [2d Dept 2005]).

Accordingly, plaintiff's motion is granted and the proposed order of reference, as modified by the Court, has been signed contemporaneously herewith. Defendant's cross-motion is denied in its entirety. Counsel for defendant is cautioned that the Court will entertain an application by plaintiff for an award of sanctions should any future motion made by defendant be deemed frivolous under 22 NYCRR 130-1.1

The foregoing constitutes the decision and Order of the Court.