The plaintiff, Aurora Loan Services (hereinafter Aurora), moves for the following relief: an order (1) pursuant to CPLR 3012 compelling the defendant, Philip Grant's (hereinafter Mortgagor) acceptance of service of its verified amended reply to the counterclaims; (2) dismissing the Mortgagor's affirmative defenses and counterclaims pursuant to CPLR 3211 and granting it summary judgment pursuant to CPLR 3212 on the grounds that the defenses and counterclaims have no merit; (3) striking from the caption of this action the names of "John Does" and "Jane Does" and that the title of this action be amended accordingly without prejudice to these proceedings; (4) referring the matter to a referee to ascertain and compute the amount due upon the note and mortgage being foreclosed upon and to report whether the mortgaged premises should be sold in one parcel.

Mortgagor, pro se, opposes Aurora's motion and cross-movesfor an order granting him summary judgment and dismissing Aurora's complaint, severing the counterclaims and referring the severed action to an arbitrator or hearing officer to determine damages, and imposing sanctions on Aurora's counsel for interposing a frivolous motion.

On September 29, 2004, Mortgagor borrowed the sum of $456,000.00 from Lehman Brothers Bank, FSB (hereinafter Lehman) for the purpose of purchasing real property. The loan was secured by a mortgage on the property. Mortgage Electronic Systems, Inc., (hereinafter MERS) acting as nominee for Lehman, was the mortgagee of record for the purposes of recording the mortgage. By an assignment of mortgage dated November 29, 2006, MERS assigned the note and mortgage to Aurora, who had been previously assigned to service the mortgage by Lehman. [*2]

Aurora commenced the instant foreclosure action by filing the summons and complaint and a notice of pendency on November 21, 2006 based upon Mortgagor's alleged default in making his August 1, 2006 loan payment and all subsequent payments accruing thereafter . On December 20, 2006, Mortgagor served and filed an answer raising a number of defenses, including lack of standing, and asserted certain counterclaims ^[FN1].

At the outset, in light of the challenge raised in Mortgagor's answer to Aurora's standing in this matter, Aurora must prove its standing in order to be awarded any of the relief requested in its complaint (see Wells Fargo Bank Minnesota v. Mastropaolo, __ AD3d __, 837 NYS2d 247, {42 AD3d 239} 2007 NY Slip Op 04626 [2d Dept., May 29, 2007]. Standing must be determined as a preliminary matter as it is relevant to the "...question of justiciability and ...ensure[s] that a party seeking relief has a sufficiently cognizable stake in the outcome so as to present a court with a dispute that is capable of judicial resolution" (Security Pac. Nat'l Bank v. Evans, 31 AD3d 278, 279, 820 NYS2d 2, 3). The critical aspect of standing is that there exists "...an injury in fact — an actual legal stake in the matter being adjudicated — ensur[ing] that the party seeking review has some concrete interest in prosecuting the action..." (Society of the Plastics Indus. v. County of Suffolk, 77 NY2d 761, 773, 570 NYS2d 778, 784). In order to prove standing, Aurora must demonstrate that it was the owner of the note and mortgage at the time it commenced this foreclosure proceeding (see Federal Nat. Mortg. Ass'n v. Youkelsone, 303 AD2d 546, 755 NYS2d 730).

Here, however, Aurora fails to make the appropriate showing. As evidenced in its papers, Aurora was assigned the note and mortgage after it commenced this foreclosure proceeding against Mortgagor. As noted previously, Aurora filed the summons and complaint in this matter on November 21, 2006, although the assignment of the note and mortgage was not effectuated until November 29, 2006. Aurora's argument that it is the only proper party to have commenced this action is without merit as it had no ownership interest in the note and mortgage when it initiated this action. Absent a valid assignment of both the note and mortgage at the time the foreclosure action is commenced, a plaintiff does not have standing to maintain the action. (see Federal Natl. Mtg. Assn. v. Youkelsone, supra ). Accordingly, those portions of Aurora's motion for summary judgment, to refer the matter to a Referee to compute the amount due, and to strike from the caption the names of "JOHN DOES" and "JANE DOES" are denied. And, Mortgagor's cross-motion seeking to dismiss Aurora's complaint for lack of standing is granted. The complaint is dismissed and the Notice of Pendency is hereby vacated.

That portion of Aurora's motion pursuant to CPLR 3012 (d) for an order compelling Mortgagor's acceptance of service of its verified amended reply is granted and the reply is deemed served. Assuming that the initial reply was improperly served, Aurora's service of its amended' reply, 9 days late, was neither willful nor lengthy, and Aurora established an excuse for the delay and provides the court with an affidavit of merit setting forth a meritorious defense to the [*3]counterclaims. Further, in opposition, Mortgagor failed to show that he was prejudiced by the delay (see Kaiser v. Delaney, 255 AD2d 362, 679 NYS2d 686, Nulia v. Manhattan Leasing Group, 204 AD2d 290, 611 NYS2d 274). In light of the above, that portion of Mortgagor's cross-motion seeking an order rejecting Aurora's motion to compel service of the reply is denied.

Aurora also seeks an order pursuant to CPLR 3211(a)(7), dismissing Mortgagor's counterclaims on the grounds that they fail to state cognizable causes of action. In reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), the court must determine whether the allegations in a counterclaim set forth a cause of action. In this regard, allegations are to be liberally construed in a light most favorable to the defendant, and are presumed to be true (see Strishak & Associates, P.C., v. Hewlett Packard Co., 300 AD2d 608, 752 NYS2d 400). Here, upon review of Mortgagor's counterclaims, it is determined that each is insufficient to defeat Aurora's motion to dismiss. Accordingly, the counterclaims are dismissed, and that portion of Mortgagor's cross-motion seeking to sever his counterclaims and allow him to proceed thereon is denied as moot.

The allegations contained in the first counterclaim fail to state a cause of action for tortious interference of a contract. Mortgagor fails to allege any facts establishing that Aurora induced one of the parties to the mortgage contract to breach the contract, a requirement of this tort (see Novak v. Rubin, 129 AD2d 780, 514 NYS2d 523). The second counterclaim fails to state a viable cause of action under General Business Law § 349 and § 350. Here, Mortgagor fails to allege any facts indicating that Aurora was engaged in a deceptive business practice or engaged in deceptive or misleading advertising which caused him injury (see Stutman v Chemical Bank, 95 NY2d 24, 731 NE2d 608, 709 NYS2d 892, Strishak & Assocs., P.C. v. Hewlett Packard Co., 300 AD2d 608, 752 NYS2d 400). The third and fourth counterclaims alleging libel and defamation of character fail to satisfy the "strictly enforced'" pleading requirement of CPLR 3016 (see Abe's Rooms, Inc., v Space Hunters, Inc., 38 AD3d 690, 833 NYS2d 138, Erlitz v. Segal, Liling & Erlitz, 142 AD2d 710; Vareka v. Investors Inc., Holding Corp., 185 AD2d 309, 586 NYS2d 272). Pursuant to CPLR 3016(a), "in an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to plaintiff may be stated generally." Here, Mortgagor's pleadings are deficient as they do not set forth the defamatory words allegedly published to the public.

The fifth counterclaim alleging predatory lending also fails to state a cause of action. Mortgagor contends that Aurora violated various federal and state laws including Section 26 of the Real Estate Settlement Procedure Act 12 U.S.C. 2605 ("RESPA"), Regulation Z of the Truth in Lending Act ("TILA") and, the Fair Debt Collection Practices Act ("FDCPA"). He alleges that the "plaintiff ... conspired with others to engage in ..... "Predatory Lending" and/or Real Estate Fraud by devising and/or participating in a scheme to dupe vulnerable members of the public, by ... issuing and/or acquiring low interest mortgages, and then fabricating defaults...., suing the Mortgagors under a name other than that of the mortgagee, obtaining default judgments through sewer service, and then transferring or assigning the judgment back to the original mortgage issuer." He further claims that the basis for his assertions are certain "statements made by plaintiff's employees and/or agents between in or about July 2006 through present; refusals of plaintiff's employees and/or agents to provide information that they were required to provide by law between in or about July 2006 [*4]through present; documents provided by plaintiff and/or documents believed to be within plaintiff's possession and/or control, which are believed to have been generated between in or about January 2004 through present...." These assertions fail to allege sufficient facts to establish that Mortgagor has a cause of action to recover damages for violations under RESPA, TILA or FDCPA or that Aurora engaged in predatory or discriminatory lending practices (see Gasman v. Zoref, 291 AD2d 430, 737 NYS2d 537). The allegations as set forth in Mortgagor's pleading are purely conclusory and are devoid of any specific facts.

The seventh counterclaim seeking to recover damages for abuse of legal process also fails to state a cause of action. The three essential elements of the tort of abuse of legal process include (1) regularly issued process, either civil or criminal (2) an intent to harm without cause or justification and (3) use of process in a perverted manner to obtain a collateral objective (see Panish v. Steinberg, 32 AD3d 383, 819 NYS2d 549). Here, Mortgagor does not allege with sufficiency any facts that establish that this action was commenced without justification in an attempt to obtain some collateral advantage outside the legitimate scope of the process (see Berisic v. Winkelman, 40 AD3d 561, 835 NYS2d 390). In the same respect, the eighth counterclaim seeking to recover damages for negligence per se fails to state a cause of action as the pleadings fail to allege with any specificity that Aurora violated a state statute which imposed a specific duty (see Elliott v. City of New York, 95 NY2d 730, 724 NYS2d 397). Mortgagor's conclusory assertion that Aurora violated various state statutory schemes' is insufficient and does establish a viable cause of action under this theory of negligence.

The ninth counterclaim fails to state a cause of action for intentional tort. Although Mortgagor sets forth a number of allegations regarding Aurora's conduct regarding the servicing of his mortgage and the handling of his complaints, such allegations of harassment and intimidation are not cognizable common law claims and therefore do not suffice (see Gentile v. Allstate Ins. Co., 288 AD2d 180, 732 NYS2d 353). The tenth counterclaim fails to state a cause of action for prima facie tort as defendant does not .properly plead special damages (see Curiano v. Suozzi, 63 NY2d 113, 480 NYS2d 466). A necessary element in an action for prima facie tort is a "particularized statement of the reasonably identifiable and measurable losses suffered" (Skouras v Brut Prods., 45 AD2d 646, 648; 360 NYS2d 811, 813). Mortgagor's bare assertion that Aurora's wrongful actions caused him to "lose work and income while incurring medical expenses thereby placing the previously financially sound property at risk" and will prevent him from refinancing his home is deficient.

Further, the sixth and eleventh counterclaims for conspiracy to commit fraud fail to state viable causes of action. Mortgagor's pleadings do not allege the necessary elements of a claim for fraud which include misrepresentation of a material fact, falsity, scienter and deception. Thus, these portions of Mortgagor's pleadings also fail to satisfy the specificity requirements of CPLR 3013 and 3016(b) (see Barclay Arms, Inc., v. Barclay Arms Assocs., 74 NY2d 644, 542 NYS2d 512). Moreover, there is no independent tort of civil conspiracy recognized in this State (see Schlotthauer v. Sanders, 143 AD2d 84, 531 NYS2d 334). Therefore, as each of Mortgagor's other counterclaims were dismissed, his counterclaims to recover damages based on civil conspiracy must also be dismissed (see Ward v. City of New York, 15 A.D3d 392, 789 NYS2d 539). [*5]

Lastly, that portion of Mortgagor's motion seeking to impose sanctions on Margaret Cascino, Esq. and/or the law firm of Tompkins, McGuire, Wachenfeld and Barry, LLP., is denied.

This constitutes the decision/order of the Court.

A copy of this decision is being served on all sides by the Court.

Dated: August 29, 2007

Enter,

______________________

Karen B. Rothenberg

J.S.C.