Upon the foregoing papers, plaintiff East West Bank moves for an order (1) pursuant to CPLR 3212, granting plaintiff summary judgment, (2) "dismissing Borrower's defenses and counterclaims," (3) pursuant to CPLR 3215, granting a default judgment against defendant "Henry Y.S. Chan"^[FN1] and (4) appointing a referee to compute. [*2]Defendants 32 Tower, LLC (Tower), Miriam Chan, Henry Y.S. Chan and Kenneth Y.K. Chan cross-move for an order (a) pursuant to CPLR 3211 (a)(8), dismissing the complaint as against Kenneth Y.K. Chan on the ground of improper service or, in the alternative, vacating his default, (b) pursuant to CPLR 3211 (a)(1), dismissing this action based on the failure to accelerate the debt, (c) pursuant to CPLR 3211 (a)(3) and (7), dismissing the complaint based on lack of standing and failure to state a cause of action against Miriam Chan, Henry Y.S. Chan and Kenneth Y.K. Chan and (d) pursuant to Real Property Actions and Proceedings Law (RPAPL) § 1301, dismissing the complaint based on plaintiff's failure to properly elect its remedy.

Plaintiff commenced this action on December 20, 2010 to foreclose a commercial mortgage encumbering the subject property at 32-42 India Street in Brooklyn. The mortgage was executed by Tower on March 30, 2006 to secure a note from United Commercial Bank (UCB) in the amount of $6,910,000.00. As additional security for the loan, personal guaranties for the repayment of Tower's obligations to UCB were signed by Miriam Chan, Henry Y.S. Chan and Kenneth Y.K. Chan.

According to the terms of the note, Tower was obligated to make monthly payments of interest from May 1, 2006 through March 1, 2008 and pay all outstanding amounts of principal, interest and other amounts owing to UCB on or before the designated maturity date of March 30, 2008. By certain agreements between UCB and Tower, the maturity date was extended to June 30, 2008, January 1, 2009 and finally to January 1, 2010. On November 6, 2009, UCB was closed by the California Department of Financial Institutions and the Federal Deposit Insurance Corporation (FDIC) was named receiver of UCB's assets. The assets of USC were thereafter transferred to plaintiff under a purchase and assumption agreement with the FDIC. As evidenced by a written assignment document dated November 18, 2010, the FDIC assigned to plaintiff the following instruments:

1. The mortgage and related documents recorded in the State of New York described in Exhibit A attached hereto (collectively, the "Mortgages") encumbering the premises commonly known as 32-42 India Street, Brooklyn, New York 11222, as more particularly described in Exhibit B attached hereto, and

2. All promissory note(s), note consolidation and/or modification agreements, and related unrecorded documents evidencing indebtedness secured by the Mortgages, and all sums payable under the foregoing (collectively, the "Notes").

Plaintiff has established its entitlement to judgment against Tower as a matter of law by producing the mortgage, the unpaid note, and an affidavit evidencing Tower's default in the payment of its obligations under the mortgage (see Wells Fargo Bank v Karla, 71 AD3d 1006 [2010], citing Capstone Bus. Credit v Imperia Family Realty, 70 AD3d 882 [2010]; Eastern Savings Bank v Sassouni, 68 AD3d 917 [2009]). Moreover, Tower does not dispute that it defaulted by failing to pay certain monthly installments and/or failing to pay the balance of the indebtedness on the final maturity date. The burden now shifts to defendants to demonstrate, by admissible evidence, the existence of a triable issue of fact as to a bona fide defense (see Wells Fargo Bank v Webster, 61 AD3d 856 [2009]; Rose v Levine, 52 AD3d 800 [2008]; Chemical Bank v Bowers, 228 AD2d 407 [1996]).

In their cross motion, defendants seek dismissal of the complaint as against Tower on two grounds- the failure of plaintiff to comply with the pleading requirements of RPAPL § 1301 (2) and the failure of plaintiff to send a proper notice of default and/or acceleration. In paragraph 35 of the complaint, plaintiff alleges that "[n]o prior action or proceeding has been commenced or is now pending to enforce the terms of the Consolidated Mortgage or any part thereof." RPAPL § 1301 (2) provides that "[t]he complaint shall state whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part has been collected." On its face, the complaint clearly fails to comply with the statute since it only states that no other action has been brought to enforce the mortgage, not whether any action has been brought to recover any part of the debt. However, "[t]he failure of the plaintiff to comply with the statutory mandate of RPAPL 1301(2) requiring that the complaint state whether any other action had been brought to recover on any part of the mortgage debt does not warrant dismissal of the complaint" (Marton Assocs. v Vitale, 172 AD2d 501 [1991]). Where there is no demonstration or allegation of prejudice to the rights of any party, this defect may be ignored" (id.; see CPLR 2001).

Here, defendants have not shown any demonstrable prejudice as a result of the defect in the complaint. There is no allegation that plaintiff had previously brought an action against Tower or the other defendants to recover on the debt, or that the defect in the pleading was intentional or meant to mislead the parties or the court. As a result, the defect may be disregarded, and that part of defendants' cross motion to dismiss the complaint pursuant to RPAPL § 1301 (2) is denied.

The court further finds unavailing defendants' argument that the action must be dismissed on the ground that plaintiff failed to send a proper notice of default and/or acceleration. The note expressly provides that:

Upon the occurrence of any Event of Default, the Bank may, in addition to such other and further rights and remedies as provided by law or under any of the Loan Documents: (i) declare all obligations under this Note (with interest accrued thereon) and all other amounts owing to the Bank to be immediately due and payable, whereupon the same shall become due and payable forthwith without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower. [*4](Emphasis added).

V. REMEDIES.

A. The Mortgagee may declare all amounts outstanding (with accrued interest thereon), all of the Secured Obligations and all other amounts owing to it to be immediately due and payable, whereupon the same shall become due and payable forthwith without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Mortgagor. (Emphasis added).

Thus, despite defendants' claims of irregularities in the notice of default allegedly mailed on behalf of plaintiff, any defects in the notice or the outright failure of plaintiff to mail a notice of default or acceleration cannot constitute a defense to foreclosure. The mailing of such notices was not required under the terms of the loan documents and was thus not a condition precedent to bringing this action (see Charter One Bank, FSB v Leone, 45 AD3d 958 [2007]).

As a result, those parts of plaintiff's motion for an order granting summary judgment as against Tower, dismissing the affirmative defenses of Tower and appointing a referee to compute are granted in all respects. That part of defendants' cross motion to dismiss the complaint as against Tower is denied.

Guaranties

Defendants seek dismissal of the complaint as against Miriam Chan, Henry Y.S. Chan and Kenneth Y.K Chan on grounds of standing, claiming that the guaranties executed in favor of UCB were not included in the assignment which transferred the mortgage and note from the FDIC to plaintiff. Standing requires an inquiry into whether a litigant has "an interest ... in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request" (Caprer v Nussbaum, 36 AD3d 176, 182 [2006]) Where, as here, the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief (see Bank of New York v Silverberg, 86 AD3d 274, 279 [2011]). In order to have standing to challenge or enforce a contract, an entity must be a party thereto or a third-party beneficiary thereof (VAC Service Corp. v Technology Ins. Co., Inc., 49 AD3d 524 [2008]; DeRaffele v 210—220—230 Owners Corp., 33 AD3d 752 [2006], lv denied 8 NY3d 814 [2007]). Of course, contracts are freely assignable absent language which expressly prohibits assignment, and when a valid assignment is made, the assignee steps into the assignor's shoes and acquires whatever rights the latter had (see Matter of Stralem, 303 AD2d 120, 122-123 [2003]).

According to the terms of the assignment instrument, the FDIC assigned the "mortgage and related documents recorded" against the premises and all "promissory notes(s), note consolidation and/or modification agreements, and related unrecorded documents evidencing indebtedness secured by the Mortgages, and all sums payable [*5]under the foregoing." However, the assignment does not expressly state that any "guaranties" were assigned. Further, it cannot be said that the language "unrecorded documents evidencing indebtedness" applies to a guaranty in this instance. In this regard, "[a] guarantee is not. . . an evidence of indebtedness'; it is an agreement collateral to the debt itself" (General Overseas Films, Ltd. v Robin Intern., Inc., 542 F Supp 684 [1982], citing Shire Realty Corp. v Schorr, 55 AD2d 356, 359-360 [1977]; First Natl. Bank of Clayton v Frisco Park Realty Co., 510 SW2d 59, 62 [Mo App1974]; 57 NY Jur, Suretyship and Guarantee § 15 [1967]). As a result, the court finds that plaintiff has failed to establish standing to maintain this action against the guarantors inasmuch as the underlying guarantees were never assigned by the FDIC. Accordingly, plaintiff's claim seeking to hold the guarantors Miriam Chan, Henry Y.S. Chan and Kenneth Chan liable for any deficiency judgment which may occur following the sale of the property must be dismissed.

Kenneth Y.K. Chan

In light of the court's determination that plaintiff lacks standing to pursue its claim against the guarantor Kenneth Y.K. Chan, that branch of plaintiff's motion which seeks a default judgment against this defendant is denied. Further, that branch of defendants' motion

which seeks dismissal of the complaint against Kenneth Y.K. Chan for lack of personal jurisdiction denied as moot.

Settle order on notice.

E N T E R,

J. S. C.