Plaintiff commenced the instant foreclosure action and Defendants failed to interpose an answer. This default culminated in the Court signing a Judgment of Foreclosure and Sale dated June 2, 2010. [*2]Defendant Schwartz now moves to vacate this judgment, alleging lack of personal jurisdiction and standing, and requests a foreclosure settlement conference.

Lack of Personal Jurisdiction

Defendant seeks to vacate the default judgment based upon his claim that service was improper and therefore failed to confer personal jurisdiction . The affidavit of service states that the summons, verified complaint and notice were served upon "Ms. Schwartz, Female Relative" on November 17, 2009 at 94 Ross Street, Apt 4F, Brooklyn, NY 11211 and mailed to this address two days thereafter.^[FN1] In response, Defendant states that "at all times relevant to the instant proceedings, I have resided at 543 Bedford Avenue, Brooklyn, NY" and "do[es] not now nor at the time Plaintiff claims to have served me with papers, resided at the address of 94 Ross Street, Apt 4F, Brooklyn, NY."^[FN2] Defendant also submits his 2008 and 2009 Income Tax Returns and a Statement of Account from HSBC which list "543 Bedford Ave No. PMB236" as his address.

In opposition to Defendant's claims that he resides at the Bedford Avenue address, Plaintiff submits the supplemental affidavit of service of Gerard Scully. In this, Scully states that upon visiting the Bedford Avenue address, he "found said premises to be a mailbox rental establishment" and was advised that Defendant neither works nor resides at that address.^[FN3] The HSBC statement annexed to both parties' submissions is addressed to Defendant at "543 Bedford Ave #

PMB236" and is consistent with this assertion, as "PMB" is often an abbreviation for "private mail box".^[FN4] In addition, Defendant's signed Uniform Residential Loan Application and Mortgage both list "94 Ross Street #

4F, Brooklyn, NY 11211" as his address.

"It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action. Ordinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a defendant is sufficient to support a finding of jurisdiction. Where, however, there is a sworn denial of receipt by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing." Bank of America Nat. Trust & Sav. Ass'n v. Herrick, 233 AD2d 351 [2d Dept 1996]. However, "[a] court need not conduct a hearing to determine the validity of the service of process where the defendant fails to raise an issue of fact regarding service." Hamlet on Olde Oyster Bay Homeowners Ass'n, Inc. v. Ellner, 57 AD3d 732, 733 [2d Dept 2008].

Given the fact that the address at which Defendant contends he resides is a mailbox rental establishment, Defendant fails to raise an issue of fact regarding service at 94 Ross Street, Apt 4F, [*3]Brooklyn, NY. Accordingly, the Court finds that service was properly effected upon Defendant pursuant to CPLR �308(2) at the Ross Street address, thereby conferring personal jurisdiction over Defendant.

Standing Argument

Defendant seeks dismissal of this action based upon its allegation that Plaintiff was not the holder of the note and mortgage at the time of commencement and, therefore, lacks standing. Defendant contends, in substance, that Plaintiff fails to establish a chain of title to the note and related mortgage Plaintiff seeks to foreclose upon.

Plaintiff contends that it acquired title to the mortgage in question via a January 15, 2004 assignment.^[FN5] As to the note in question, Plaintiff notes that "the Note was blank indorsed by First National Bank of Nevada, therefore pursuant to UCC �3-204(2) the Note is payable to the bearer and effective upon delivery. No additional language in the assignment was necessary to transfer ownership of the note."^[FN6]

In order to commence a foreclosure action, the plaintiff must have a legal or equitable interest in the mortgage. Wells Fargo Bank, N.A. v. Marchione, 69 AD3d 204, 207 [2d Dept 2009]. In First Trust National Association v. Meisels, the Appellate Division, Second Department, held that "the plaintiff was both the assignee of the mortgage and, by indorsement, the holder of the underlying note at the time the foreclosure action was commenced. Accordingly, the plaintiff had standing to maintain the action." 234 AD2d 414 [2d Dept 1996].

A promissory note is a negotiable instrument within the meaning of the Uniform Commercial Code. Mortgage Electronic Registration Systems, Inc. v. Coakley, 41 AD3d 674 [2d Dept 2007]. Given this, the UCC provides that "[a]n indorsement in blank specifies no particular indorsee and may consist of a mere signature. An instrument payable to order and indorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially indorsed." UCC �3-204(2); see Mortgage Electronic Registration Systems, Inc. v. Coakley, 41 AD3d 674 [2d Dept 2007] [holding that transfer and tender of a promissory note indorsed in blank establishes Plaintiff's standing].

As to the mortgage in question, the January 15, 2004 assignment was recorded with the summons in this action, thereby establishing Plaintiff as holder of the mortgage at the time of commencement. In regards to the note, the indorsement in blank on the allonge made the instrument payable to Plaintiff as bearer. Plaintiff's production of the note in the instant action constitutes prima facie evidence of both delivery of the note to Plaintiff and its title to the note. Hays v. Hathorn, 29 Sickels 486, 1878 WL 12683 [1878].

Based upon the submissions of the parties, the Court finds that Plaintiff possessed standing at the [*4]time of the commencement of this action. Accordingly, Defendant's motion is denied.

Any relief not specifically addressed in this Decision and Order is denied in the Court's discretion.

Dated:New City, New York

November 22, 2010