In this mortgage foreclosure action, plaintiff Beneficial Homeowner Service Corporation moves for an order: (1) pursuant to CPLR 3212, granting it summary judgment against defendant Marie Moore, (2) pursuant to CPLR 3215, granting it a default judgment against the remaining defendants, (3) appointing a referee to compute the amount due to it, and (4) amending the caption.

Plaintiff commenced this action seeking to obtain a money judgment on a note and to foreclose a mortgage on real property located at 592 Madison Street in Brooklyn. More specifically, on November 23, 2004, defendants Jeffrey and Kimberly Butler executed and delivered to plaintiff a note pursuant to which they agreed to $94,497.06, plus interest. As collateral security for the note, the Butlers and Moore, as owners of the subject property, executed a mortgage in the same amount in favor of plaintiff, which mortgage was duly recorded in the Office of the County Clerk, Kings County on December 14, 2004.

On January 29, 2006, defendants defaulted on the note and mortgage by failing to make the requisite monthly payments. Plaintiff accordingly elected to exercise its option to demand the immediate payment of the debt in full. Plaintiff contends that the sum of $92,242.72, plus interest accrued from December 29, 2005, is now due and owing pursuant to the note and mortgage.

Moore interposed an answer wherein she denies the allegations of the complaint and interposes two affirmative defense, i.e., failure to state a cause of action and the assertion that she is not liable for the defaulted mortgage payments. The remaining defendants have failed to appear in the action and have not interposed an answer.

Inasmuch as plaintiff has sustained its burden of making a prima facie showing of entitlement to summary judgment, the burden shifts to defendants, as the mortgagors, to raise a triable issue of fact (see e.g. Fleet Natl. Bank v Olasov, 16 AD3d 374 [2005], lv dismissed 5 NY3d 849 [2005]; US Bank Trust Natl. Assn. Tr. v Butti, 16 AD3d 408 [2005]; Republic Natl. Bank v O'Kane, 308 AD2d 482 [2003]). "It is the well-settled law of this State that a mortgagor is bound by the terms of his contract as made and cannot be relieved from his default, if one exists, in the absence of waiver by the mortgagee, or estoppel, or bad faith, fraud, oppressive or unconscionable conduct on the latter's part'" (Citidress v 207 Second Ave. Realty, 21 AD3d 774, 776-777 [2005], quoting Nassau Trust Co. v Montrose Concrete Prods., 56 NY2d 175, 183 [1982], appeal denied 57 NY2d 674 [1982], quoting Ferlazzo v Riley, 278 NY 289, 292 [1938]).

In opposition to plaintiff's motion, Moore expands upon her affirmative defenses, arguing that plaintiff is not entitled to the entry of judgment as against her because: (1) plaintiff failed to give her 30 days notice before commencing an action to enforce the debt, as required pursuant to 15 USC § 1692g (a); (2) she did not receive a notice from plaintiff declaring its intent to accelerate the debt; (3) plaintiff failed to include Champion Mortgage, the holder of the first mortgage on the subject property, as a necessary defendant; and (4) the loan is unenforceable as against her because plaintiff failed to provide her with the required State and HUD disclosure statements.

Failure to State a Cause of Acton

As a threshold issue, the law is clear in this department that the defense that a complaint does not state a valid cause of action cannot be interposed in an answer, but must be raised by appropriate motion pursuant to CPLR 3211 (a) (7) (see e.g. Petracca v Petracca, 305 AD2d 566, 567 [2003]; Staten Island-Arlington v Wilpon, 251 AD2d 650 [1998]; Propoco v Birnbaum, 157 AD2d 774, 775 [1990]). If Moore's motion is so construed, the above discussion establishes that plaintiff not only has stated a cause of action against Moore, but has also made a prima facie showing of entitlement to summary judgment. In this regard, the court recognizes that in support of its motion and during oral argument, plaintiff withdrew any cause of action against Moore that could be construed as premised upon a default under the note, since she was not a party to that agreement.

Notice of Intention to Accelerate Payment

The mortgage at issue herein provides, in pertinent part, that:

"Default. If you don't pay on time or fail to keep any required insurance in force, or if permitted in the event of default under the Mortgage, (1) all your payments may become [*4][*5]due at once, and (2) without notifying you before bringing suit, we may sue you for the entire unpaid balance of Principal and accrued Interest . . ."

Hence, it is clear that "[b]y the terms of the mortgage agreement, [defendants'] default gave the plaintiff the right to accelerate the indebtedness" (New York v Kashau, 133 AD2d 205, 206 [1987], citing East New York Sav. Bank v Carlinde Realty, 54 AD2d 574 [1976], affd 42 NY2d 905 [1977]). Further, it is well established that " [t]he law is clear that when a mortgagor defaults on loan payments, even if only for a day, a mortgagee may accelerate the loan, require that the balance be tendered or commence foreclosure proceedings, and equity will not intervene'" (First Fed. Sav. Bank v Midura, 264 AD2d 407, 408 [1999], quoting New York Guardian Mortgagee v Olexa, 176 AD2d 399, 401 [1991]).

As is also relevant, it must be recognized that if a mortgage follows the statutory form as set forth in Schedule M of Real Property Law § 258, as does the mortgage at issue herein, the statute does not make it a prerequisite that the mortgagor be given any notice of the mortgagee's election to deem the mortgage accelerated as to its maturity, since the filing of the summons, verified complaint and lis pendens suffices (see e.g. Fifty-Second Street Operating v Regus Realty, 236 App Div 497, 499 [1932], affd 261 NY 672 [1933], citing Albertina Realty Co. v Rosbro Realty, 258 NY 472, 474 [1932]; see also Clayton Natl. v Guldi, 307 AD2d 982 [2003]; City Sts. Realty v Jan Jay Constr. Enters., 88 AD2d 558, 559 [1982]).

Failure to Join Necessary Party

Plaintiff's failure to join the holder of a superior mortgage is similarly insufficient to defeat plaintiff's entitlement to summary judgment, since the absence of a necessary party in a mortgage foreclosure action simply leaves that party's rights unaffected by the judgment of foreclosure and sale (see Marine Midland Bank v Freedom Rd. Realty Assocs., 203 AD2d 538, 539 [1994], citing Polish Nat. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d 400 [1983]; Empire Sav. Bank v Towers Co., 54 AD2d 574 [1976]). Further, the defense was withdrawn by counsel during oral argument.

Notice Pursuant to 15 USC § 1692

The Federal Fair Debt Collection Practices Act (15 USC § 1692 et seq.) (FDCPA) was enacted to protect consumers by eliminating debt collectors' abusive practices (see 15 USC § 1692 [e]; Eina Realty v Calixte, 178 Misc 2d 80, 83 [1998]; Romea v Heiberger & Assocs., 163 F3d 111, 118 [1998]). Moore's claim that plaintiff violated the FDCPA is without merit, however, since it has been held that the act does not generally apply to a creditor seeking to enforce a contract, such as a mortgage or note (United Cos. Lending v Candela, 292 AD2d 800, 801-802 [2002], citing 15 USC § 1692a [6] [F] [iii]; Maguire v Citicorp Retail Servs., 147 F3d 232, 235 [1998]; Wadlington v Credit Acceptance, 76 F3d 103, 106 [1996]). In the alternative, it has been held that the notice provisions do not apply where the creditor, rather than a debt collector, directly attempts to collect the debt (Monogram Credit Card Bank v [*6][*7]Mata, 195 Misc 2d 96, 97 [2002], citing 15 USC § 1692a [6]; Eina Realty, 178 Misc 2d at 83, 85, 87; Maguire, 147 F3d at 235).

Failure to Provide Requisite Disclosure

In seeking denial of summary judgment on this basis, Moore argues that the mortgage is unenforceable as against her as the result of plaintiff's alleged failure to provide her with the disclosure statements required pursuant to Regulation Z. This argument is equally unpersuasive to defeat plaintiff's entitlement to summary judgment, since Regulation Z (12 CFR part 226) promulgated under the Truth in Lending Act (15 USC §§ 1601-1665 [6]) provides that a failure to comply with the requirements of the statute and regulations allows a debtor to rescind the transaction (see generally Bank of New York v Waldon, 194 Misc 2d 461, 464 [2002]; Bankers Trust v McFarland, 192 Misc 2d 328 [2002]; Community Mut. Sav. Bank v Gillen, 171 Misc 2d 535 [1997]). Hence, Regulation Z does not render the mortgage unenforceable, as argued by Moore.

Accordingly, plaintiff is entitled to summary judgment as against Moore.

In support of this branch of its motion, plaintiff annexes copies of affidavits of service that establish that the City of New York Department of Finance Parking Violations Bureau, City of New York Environmental Control Board, and the City of New York Department of Taxation and Finance were served by service upon the docketing clerk thereof on June 19, 2006. In addition, affidavits of service indicate that Jeffrey Butler was personally served on June 20, 2006 and that Kimberly Butler was served on the same day by service upon her husband, as a person of suitable age, and by mailing a copy of the papers to her on the following day. Further, another affidavit of service indicates that the Criminal Court of the City of New York was served by service upon the clerk of the court on June 26, 2006.

To date, none of these defendants have appeared or submitted an answer to the complaint. Further, as the above discussion makes clear, plaintiff has made a prima facie showing of entitlement to judgment. Accordingly, that branch of plaintiff's motion seeking a default judgment against the remaining defendants is granted.

That branch of plaintiff's motion seeking to amend the caption to delete Jon Doe No. 1 to John Doe No. 10, without prejudice, is granted without opposition.

Plaintiff is granted summary judgment as against Moore and a default judgment against Jeffrey Butler, Kimberly Butler, the Criminal Court of the City of New York, the City of New York Department of Finance Parking Violations Bureau, the City of New York Environmental Control Board, the City of New York Department of Finance and the Criminal Court of the City of New York. The caption shall be deemed amended to delete John Doe No.1 through John Doe #10, without prejudice. The matter is referred to a referee to ascertain and compute the amount due to plaintiff.

Settle order on notice. [*8][*9]

The foregoing constitutes the order and decision of this court.

E N T E R,

J. S. C.