This is an action brought by the plaintiff, LaSalle Bank National (hereinafter, "LaSalle" or "the plaintiff"), to foreclose a mortgage made by the defendants Deanne Legier and Joyce Legier, dated January 2, 2008 and recorded April 3, 2008 in the Office of the City Register of the City of New York in the principal amount of $456,000.00. The above-entitled action is for a money judgment for the balance due under a mortgage note.

The plaintiff, by its attorney, moves for default judgment pursuant to CPLR §3215 against Deanne Legier. The plaintiff also moves for summary judgment pursuant to CPLR §3212, including alternatives, against Joyce Legier. Finally, the plaintiff moves for the appointment of a referee pursuant to RPAPL §1321(1). Factual Background

LaSalle, by an assignment of a mortgage dated January 2, 2008 and recorded in the

At the May 14, 2007 closing, the defendants used the proceeds of the plaintiff's loan to refinance two prior mortgages against the premises in the amounts of $327,384.73 and $41.830.43. Both of these mortgages were satisfied. On March 11, 2008, the plaintiff commenced an action to foreclose the mortgage. The plaintiff alleges that both defendants were served at 10 East 53rd Street, Brooklyn, New York 11203.

Default Judgment

The plaintiff argues that because Deanne Legier has not appeared, answered, or otherwise moved in this action and her time to move has expired, she is in default, as established by CPLR §3215. In support of this claim, the plaintiff argues that an Affidavit of Service which states that on March 13, 2008, Deanne Legier was served at 10 East 53rd Street, Brooklyn, New York 11203, is sufficient proof of service. The plaintiff avers that its process server delivered one true copy of the summons and complaint and left it with Deanne Legier's mother, Joyce Legier, a person of suitable age and discretion at the above address; and that a copy of the summons and complaint was sent by mail to Deanne Leiger on March 17, 2008, a date within 20 days of the personal service as set forth in CPLR §308(3).

Deanne Legier states that she was not served properly in the proceeding. Moreover, Deanne Legier avers that her mother did not give her the summons and complaint that the plaintiff's process server had allegedly left for her. In support of Deanne Legier's statement, Joyce Legier also argues, by way of affidavit, that Deanne did not live in 10 E. 53rd St., Brooklyn, New York at the time the action commenced. Joyce Legier alleges that she did not give the summons and complaint to Deanne Legier.

Summary Judgment

In pertinent part, CPLR §3212 states that, "Any party may move for summary judgment in any action, after issue has been joined. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."In order to defeat summary judgment, the non-moving party must produce evidentiary proof establishing that a triable issue of material fact exists. Mere conclusions, unsubstantiated allegations or assertions and expressions of hope are wholly insufficient (see Zuckerman v. N.Y.C., 49 NY2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]). In support of its claim for summary judgment, the plaintiff presents the Affidavit of Tom Turano, a title closer. Tom Turano states therein, that although Joyce Legier advised him that she was unable to attend the closing of the mortgage, she agreed to the refinance and promised to execute the mortgage in front of a notary public and send it back to him. Turano also states that Joyce Legier provided a copy of her passport as proof of her identity. Additionally, Turano states that proof of the acknowledgment of the mortgage is available in the form of a Federal Express receipt. It is unclear from Turano's affidavit whether Joyce Legier sent back the executed mortgage documents. Nonetheless, the plaintiff argues that Turano's affidavit makes it clear that there is no question that Joyce Legier agreed to the refinance. Thus, the plaintiff asserts that there are no triable issues of fact and these proofs sufficiently warrant as a matter of law judgment in favor of itself. [*3]

In the alternative, should the Court decide not to grant the plaintiff summary judgment, the plaintiff argues that its mortgage lien should be declared a "first priority mortgage" against Deanne Legier's interest in the Premises and that an equitable mortgage be imposed against Joyce Legier's interest in the property in the sum of $456,000. An equitable mortgage has been defined in our jurisprudence as "a transaction that has the intent but not the form of a mortgage and that a court will enforce in equity to the same extent as a mortgage" (77 NY Jur Mortgages and Deeded of Trust §20). The plaintiff proffers that, Joyce Legier's verbal consent to the mortgage, coupled with her photo identification, is demonstrable intent, on her part, to provide security in the form of a mortgage. The plaintiff avers that without the grant of an equitable mortgage upon Joyce Legier's interest in the Premises, the defendants will have reaped a windfall and become unjustly enriched to the detriment and hardship of the plaintiff.

In a final alternative, the plaintiff argues that should the Court not grant LaSalle summary judgment on the grounds that its mortgage is valid, or that it is entitled to an equitable mortgage in the amount of $456,000, that the Court should grant the plaintiff summary judgment in an amount not less than $369, 215.16, with interest, as to Joyce Legier's 50% interest in the premises. The plaintiff explains that the amount requested is more than 50% of the original mortgage because the plaintiff's mortgage proceeds were used to pay off two existing mortgages, which secured debts owed by Joyce Legier for a total of $369,215.16.

Joyce Legier, through her attorney, argues that the mortgage in question was "non-traditional" pursuant to RPAPL §1305(5)(e) which classifies "a payment option adjustable rate mortgage or an interest only loan consummated between January 1, 2003 and September 1, 2008" as a "non-traditional home loan".RPAPL §1304 requires that with regard to a "non-traditional" mortgage "at least ninety days before a lender or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, the lender or mortgage loan servicer shall give notice to borrower in at least fourteen-point font." The defense states that the plaintiff has not pleaded that such notice was sent nor is the notice included in the summons and complaint or in any of the supporting materials attached. Thus, Joyce Legier contends that the plaintiff did not comply with the statutory requirement, making the action dismissible in its entirety.Discussion

Default Judgment

With regard to the plaintiff's motion for default judgment against Deanne Legier, this Court finds that service upon Deanne Legier was proper. The process server served the Summons and Complaint on Deanne Legier by personal delivery on a person of suitable age and discretion, and by the additional requirement of mailing the Summons and Complaint to 10 East 53rd Street. Deanne Legier argues that 10 E 53rd Street has not been her "actual place of business, dwelling place, or usual place of abode," at the time of filing or for years before. The Court notes that on May 14, 2007, less than a year prior to the commencement of this action, Deanne Legier executed an occupancy declaration in which, she declares that, the"[b]orrower shall continue to occupy the Property (10 East 53rd Street) as Borrower's principal residence for at least one year after the date of the occupancy, unless Lender agrees otherwise in writing. " Deanne Legier makes no allegation which indicates that she sought or obtained agreement from the lender to change her principal residence. Deanne Legier's statement that she did not live at 10 E 53rd Street on March 13, 2008 or for years before is insufficient to rebut the service of process since 10 East 53rd Street is the only address that Deanne Legier ever gave to the plaintiff [*4]and it is an address which she promised to maintain as her residence until May 17, 2008; it was an address that the plaintiff could legally and reasonably should have been able to give her notice of this proceeding. New York law establishes that a duly sworn affidavit by an indifferent person such as a process server is prima facie evidence that the service was proper though such evidence is rebuttable (see Wieck v. Halpern, 255 AD2d 438 [2nd Dept. 1999]); (see also Remington Investments Inc. v. Seiden, 240 AD2d 647 [2nd Dept. 1997]). The burden is on the defendant to rebut the presumption of regularity and valid service with sufficient sworn factual allegations (see Simmons First National Bank v. Mandracchia, 248 AD2d 375 [2nd Dept. 1998]). Joyce Legier also asserts that 10 East 53rd Street, Brooklyn, New York 11203 was not Deanne Legier's residence at the time the action commenced, and though she received the Summons and Complaint, she never gave it to her daughter. Joyce Legier was a person of suitable age and discretion under CPLR §308(2) and process was subsequently mailed to Deanne Legier at 10 E. 53rd st. The plaintiff was correct to serve Deanne's Legier at 10 E 53rd Street, as that was her "actual place of business, dwelling place, or usual place of abode;" The statements of Deanne and Joyce Legier's allegations are insufficient to rebut the presumption of regularity and valid service.

Summary Judgment

It is well-settled in New York State that, pursuant to CPLR §3212, a motion for summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see, Zuckerman 49 NY2d at 557). Failure to make a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316, [1985]). In moving for summary judgment as a matter of law in a mortgage foreclosure action, the lender must establish its prima facie case through production of the mortgage, the unpaid note, and evidence of default (see Petra CRE CDO 2007-1, LTD., etc, v. 160 Jamaica Owners, LLC, 73 AD3d 883 [2nd Dept. 2010]). In order to establish the "evidence of default" prong of a prima facie case, the plaintiff must demonstrate that proper notice of default in compliance with RPAPL §1304 was given to the defendant. According to RPAPL §1304, the lender or mortgage loan servicer shall give notice to the borrower, which includes the following language: "If this matter is not resolved within 90 days from the day this notice was mailed, we may commence legal action against you . . ." The notice must be in the form prescribed in the statute and contain the warning "YOU COULD LOSE YOUR HOME."The notice must also provide information regarding assistance for borrowers who are facing financial difficulty.

In Bank of America v. Guzman, (26 Misc 3d 922, 892 N.Y.S.2d 846, NY Slip Op. 29528 [2009]), the court states that, "A defendant may raise the failure to comply with RPAPL §1304 as a defense in a foreclosure action." The Guzman court also found that the language of the statute is clear in requiring the service of the 90-day notice, (see RPAPL §1304(1) stating that "the lender or mortgage loan servicer shall give notice to the borrower. . .") Furthermore, the Guzman court states the following in its decision to dismiss, "[I]n reaching this decision, the court is not unmindful of the Legislature's goal of assisting homeowners facing foreclosure when it enacted this new provision of the RPAPL. It would be against the spirit of the legislation were this court to allow the action to proceed in the absence of the requisite notice" (see Bank of [*5]America v. Guzman, 892 N.Y.S.2d at 847). In the instant case, the plaintiff-mortgagee has failed to demonstrate that it gave the defendants-mortgagors notice of default prior to demanding payment of loan in full, as required to establish prima facie entitlement to judgment. (see HSBC Mortg. Corp. (USA) v. Gerber, 100 AD3d 966 [2nd Dept. 2012]).The plaintiff's motion contains no mention of such a notice having been sent nor is such a notice included with the complaint or supporting documents. The plaintiff fails to unequivocally aver compliance with RPAPL §1304 or submit any documentary proof that the requirements of the statute were satisfied. Rather, the plaintiff merely states that Joyce Legier has failed to raise a triable issue of fact in opposition to the plaintiff's motion for summary judgment.

This Court agrees with the reasoning set forth by Guzman and applies it to the facts at hand.The plaintiff has failed to comply with a condition precedent and, thus, the plaintiff has not established its right to summary judgment. Consequently, the plaintiff's motion for summary judgment is denied as against Joyce Legier. The plaintiff's motion for default judgment as against Deanne Legier, is also denied for although service upon her was proper, this Court of equity cannot allow the plaintiff to proceed against Deanne Legier given its failure to adhere the requisite notice set forth in RPAPL §1304. The case is dismissed. The issue(s) of the alternative(s) to summary judgment are now moot.

This constitutes the decision and order of the court.

ENTER:

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yvonne lewis, JSC