Upon the following papers numbered 1 to6read on this motionto vacate default, among other things; Notice of Motion/Order to Show Cause and supporting papers 1 - 4; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers5-6; Replying Affidavits and supporting papers; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that this motion (#003) by defendant, Hernan Orellana, for dismissal of this action, a vacatur of the judgment of foreclosure and sale and the movant's default in answering with leave to serve a late answer and injunctive relief prohibiting the sale and/or transfer of the mortgaged premises is considered under CPLR 5015, 317 and 3012(d) and is denied.

This action was commenced on October 9, 2009 and the moving defendant was served with the summons and complaint pursuant to CPLR 308(2) on October 9, 2009. The moving defendant defaulted in answering the summons and complaint and such default was judicially fixed and determined by the court in the order of reference it issued in October of 2010. The judgment of foreclosure and sale issued in January of 2012 and it was thereafter served upon the moving defendant with notice of its entry.

By the instant motion, defendant Orellana sought a stay of the impending sale of the mortgaged premises under the terms of the judgment. That application was denied when this court struck the temporary stay provisions set forth in the May 8, 2013 Order to Show Cause, by which the motion was interposed. Left for determination was the moving defendant's demands for a vacatur of the judgment and his underlying default on jurisdictional and non-jurisdictional grounds together with a dismissal of the complaint or leave to serve a late answer. Claims for injunctive relief prohibiting the sale or transfer of the mortgaged premises are also advanced. For the reasons stated below, the motion is denied.

Those portions of this motion wherein the moving defendant claims that the judgment entered herein on October 20, 2012 is jurisdictionally infirm due to a lack of service upon the moving defendant's co-defendant, Lupe Banegas, is rejected as unmeritorious. It is well established that the defendant of lack of personal jurisdiction resting on the absence of service or improper service is personal in nature and thus may only be raised by the party defendant possessed of such defense (see Wells Fargo Bank, NA v Bowie, 89 AD3d 931, 932 NYS2d 702 [2d Dept 2011]; NYCTL 1996-1 Trust v King, 13 AD3d 429, 787 NYS2d 61 [2d Dept 2004]). The moving defendant is thus without an entitlement to a vacatur of the judgment due to any lack of or improper service of process upon his co-defendant, as such co-defendant did not appear in the action nor participate in this application by counsel or otherwise.^[FN1] [*2]

Moving defendant Orellana next claims an entitlement to a vacatur of his default and the judgment entered herein pursuant to CPLR 5015(a)(4) due to a purported failure to serve defendant Orellana with the summons and complaint. However, defendant Orellana's unsubstantiated denials of "personal service" and of receipt of any mailings were insufficient to rebut the process server's affidavit that due and proper service was effected pursuant to CPLR 308(2) (see Chichester v Alal-Amin Grocery & Halal Meat, 100 AD3d 826, 954 NYS2d 577 [2d Dept 2012]; US Bank v Melton, 990 AD3d 742, 934 NYS2d 352 [2d Dept 2011]; Bank of New York v Segui, 68 AD3d 908, 890 NYS2d 830 [2d Dept 2009]). The moving defendant's demands for vacatur of the judgment pursuant to CPLR 5015(a)(4) and dismissal of the complaint due to personal jurisdictional grounds are thus denied as unmeritorious.

For like reasons, the moving defendant's demands for an order relieving him of his default pursuant to CPLR 317 are denied. A mere denial of receipt and/or an unsubstantiated claim of lack of service of the summons and complaint are insufficient to establish a lack of notice of the action in time to defend which precludes the granting of relief pursuant to CPLR 317 (see Stevens v Charles, 102 AD3d 763, 958 NYS2d 443 [2d Dept 2013]; Act Prop., LLC v Garcia, 102 AD3d 712, 957 NYS2d 884 [2d Dept 2013]; Hildago v Cruiser Taxi Corp., 101 AD3d 950, 957 NYS2d 222 [2d Dept 2012]; Wassertheil v Elburg, LLC, 94 AD3d 753, 941 NYS2d 679 [2d Dept 2012]). Those portions of this motion wherein the moving seeks relief pursuant to CPLR 317 together with an opportunity to appear herein and defend against the plaintiff's claims by service of an answer are denied.

The moving defendant's demands for vacatur of the judgment of foreclosure and sale and his default in answering on the grounds of excusable default pursuant to CPLR 5015(a)(1) are denied. It is well established that relief pursuant to CPLR 5015(a)(1) and/or CPLR 3012(d) (leave to serve a late answer) is available only upon a showing of a reasonable excuse for the default in answering and a meritorious defense to the claims (see Eugene DiLorenzo, Inc. v AC Dutton Lbr. Co., 67 NY2d 138, 501 NYS2d 8 [1986]; Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825, 958 NYS2d 472 [2d Dept 2013]). An unsuccessful claim of no service or irregular service does not constitute a reasonable excuse (see Citimortgage, Inc. v Bustamante, ___ AD3d ___, 2013 WL 2495907 [2d Dept 2013]; Bank of New York v Samuels, ____ AD3d ____, 2013 WL 2420719 [2d Dept 2013]; Act Prop., LLC v Garcia, 102 AD3d 712, supra; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2012]; Reich v Redley, 96 AD3d 1038, 947 NYS2d 564 [2d Dept 2012]).

The excuses other than those pertaining to service offered by defendant Orellana are the following (1) that he was involved in settlement negotiations that were going very well with the "entity that was sending me the mortgage statements" (see affidavit of defendant Orellana in support of motion, ¶¶ 9; 14; 18); (2) the plaintiff's bad faith in proceeding "secretly" and without notice with the prosecution of this action (see id.); and (3) the plaintiff's failure to "follow the rules" in foreclosure actions such as service of the notices required by RPAPL Article 1304 and the filing of the attorney's affirmation of the type required by Administrative Order 431/11. For the reasons stated below, these claims do not constitute reasonable excuses for the default in answering. [*3]

The moving defendant's reliance upon alleged out of court negotiations "with the entity that was sending me the mortgage statements" (see affidavit of defendant Orellana in support of motion, ¶ 9) is unsubstantiated and does not constitute a reasonable excuse within the contemplation of CPLR 5015(a)(1) (see Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825, supra; Bank of New York Mellon v Izmirigil, 88 AD3d 930, 931 NYS2d 667 [2d Dept 2011]; Garal Wholesalers, Ltd. v Raven Brand's, Inc., 82 AD3d 1041, 919 NYS2d 358 [2d Dept 2011]; US Bank Natl. Assn. v Slavinski, 78 AD3d 1167, 912 NYS2d 285 [2d Dept 2010]). Nor did the moving defendant offer any explanation for the lengthy delay in moving to vacate his default (see Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825, supra; Garal Wholesalers, Ltd. v Raven Brand's, Inc., 82 AD3d 1041, supra).

The moving defendant's claims of bad faith on the part of the plaintiff are also unavailing. There is no requirement that a foreclosing plaintiff modify its mortgage loan prior to or after a default in payment (see Graf v Hope Bldg. Corp., 254 NY 1, 4-5, 171 NE 884 [1930]; Wells Fargo Bank, NA v Meyers, 2013 WL 1811781 [2d Dept 2013]; Wells Fargo Bank, NA v Van Dyke, 101 AD3d 638, 958 NYS2d 331 [1st Dept 2012]; Key Intern. Mfg. Inc. v Stillman, 103 AD2d 475, 480 NYS2d 528 [2d Dept 1984]; Valley Natl. Bank v 58 Vlimp, LLC, 39 Misc3 1221[A], 2013 WL 1849124 [Sup. Ct. Suffolk County 2013]; JP Morgan Chase Bank Natl. Assn. v Illardo, 36 Misc 3d 359, 940 NYS2d 829 [Sup. Ct. Suffolk County 2012]). While the parties to a mortgage are required to enter into good faith negotiations aimed at reaching a mutual resolution, including a loan modification, if possible (see CPLR 3408), the failure to negotiate in good faith is not a defense to a foreclosure action and it does not provide a defendant with a reasonable excuse for a default in answering (see (see Wells Fargo Bank, NA v Meyers, 2013 WL 1811781, supra; Wells Fargo Bank, NA v Van Dyke, 101 AD3d 638, supra; US Bank Natl. Assn. v Slavinski, 78 AD3d 1167, supra). The moving defendant's reliance upon loan modification discussions with representatives of the plaintiff and upon claims of purported bad faith on the part of the plaintiff prior to and/or after the default in answering are thus rejected as unmeritorious. Since no reasonable excuse for his default in answering has been advanced by defendant Orellana, his claims for vacatur of the judgment pursuant to CPLR 5015(a)(1) and his demands for leave to serve a late answer as contemplated by CPLR 3012(d) are denied.

Finally, the moving defendant's claims for dismissal of this action and the complaint served herein due to the plaintiff's purported failures to observe the "rules" imposed upon foreclosing plaintiffs, such as compliance with RPAPL § 1304 and with Administrative Order 436/11, are unavailing. That a party in default may not move for affirmative relief of a non-jurisdictional nature, such as dismissal of a complaint pursuant to CPLR 3211 or otherwise, without successfully moving to vacate his or her default, is clear (see HSBC Mtge. Corp. v Morocho, 106 AD3d 875, 2013 WL 1983724 [2d Dept 2013]; US Bank Natl. Assn. Vv Gonzalez, 99 AD3d 694, 952 NYS2d 59 [2d Dept 2012]; Deutsche Bank Trust Co., Am. v Stathakis, 90 AD3d 983, 935 NYS2d 651 [2d Dept 2011]; Holubar v Holubar, 89 AD3d 802, 934 NYS2d 710 [2d Dept 2011]; McGee v Dunn, 75 AD3d 624, 624, 906 NYS2d 74 [2d Dept 2010]; US Bank Natl. Assn. v Vardales, 39 Misc 3d 1211[A], 2013 WL 1490658 [Sup. Ct. Suffolk County 2013]; Deutsche Bank Natl. Trust Co. v Young, 2012 WL 6019543 [Sup. Ct. Suffolk County 2012]). The moving defendant's conclusory [*4]denials of any recollection of receiving the RPAPL § 1304 90-day notice of default do not establish the absence of the sending of such notice by the plaintiff, its agents or predecessors in interest (see RPAPL § 1304). In any event, the failure to comply with RPAPL § 1304 is not a jurisdictional defect (see Pritchard v Curtis, 101 AD3d 1502, 957 NYS2d 440 [3d Dept 2012]; Citimortgage v Pembelton, 39 Misc 3d 454, 960 NYS2d 867 [Sup. Ct. Suffolk County 2013]; see also Deutsche Bank Natl. Trust Co. v Posnek, 89 AD3d 674, 933 NYS2d 52 [2d Dept 2011]). Since moving defendant Orellana was not successful in his attempt to vacate his default, he is without an entitlement to move for the affirmative relief of dismissal due to a purported failure on the part of the plaintiff to comply with the provisions of RPAPL § 1304 (Deutsche Bank Natl. Trust Co. v Posnek, 89 AD3d 674, supra; Citimortgage v Pembelton, 39 Misc 3d 454, supra).

The moving defendant's alternate claim that the plaintiff's failure to comply with Administrative Order 436/11 is also not jurisdictional in nature (see LaSalle Bank NA v Pace, 100 AD3d 970, 955 NYS2d 161 [2d Dept 2013]; Countrywide Home Loans v Taylor, 39 Misc 2d 597, 961 NYS2d 909 [Sup. Ct. Suffolk County 2013]). The defendant's reliance upon perceived omissions and deficiencies in counsel's affirmation thus provide no basis for a vacatur of the judgment of foreclosure and sale and the underlying default on the part of defendant Orellana in timely answering the summons and complaint.

The court has considered the remaining contentions of the moving defendant and those of his counsel and find them all to be unavailing.

In view of the foregoing, the instant motion by defendant Orellana to vacate the judgment of foreclosure and sale, his underlying default and for other relief, including injunctions, is denied in its entirety.

DATED: ___June 17, 2013____________________________________________

THOMAS F. WHELAN, J.S.C.