The following papers numbered 1 to 11 were read on this motion by the defendant, GEORGE A. JENKINS, pro se, for an order dismissing this foreclosure action pursuant to CPLR 3211(a)(7) for failing to state a cause of action; pursuant to CPLR 3211(a)(1) and 3211(a)(3) for lack of standing and lack of capacity to sue; and pursuant to 3211(a)(8) for failure to obtain personal jurisdiction:

Papers Numbered

Notice of Motion-Affidavits-Exhibits...................1 - 6

Affirmation in Opposition-Affidavits-Exhibits..........7 - 11

This is defendant George A. Jenkins' motion pertaining to the foreclosure of the property located at 121-09 196th Street [*2]Jamaica, New York, 11413-1138. Based upon the record before this court, the defendant borrowed the principal sum of $353,500 from Wachovia Mortgage, FSB on April 9, 2008. Plaintiff, the successor by merger to Wachovia Mortgage, claims the defendant defaulted on his adjustable rate mortgage note when he failed to make his monthly mortgage payments beginning on August 15, 2010. Plaintiff subsequently accelerated the defendant's mortgage and brought this action to foreclose by filing a lis pendens and a summons and complaint on October 16, 2012.

Defendant, George A. Jenkins, the record owner of title of the premises and the mortgagor, was served on January 9, 2013 pursuant to CPLR 308(2) by leaving a copy of the summons and complaint with a person of suitable age and discretion and by mailing a copy of the summons and complaint to the defendant's address in Tyrone, Georgia (see affidavit of service dated January 23, 2013 executed by process server Hassan M. Rashid). To date, the defendant has failed to interpose an answer and the time to do so has expired.

Defendant now moves to dismiss the action pursuant to CPLR 3211(a)(1)(3) on the ground that the plaintiff lacked standing and capacity to commence the action; pursuant to CPLR 3211(a)(7) on the ground that the complaint fails to state a cause of action; and pursuant to CPLR 3211(a)(8) on the ground that the plaintiff has failed to obtain personal jurisdiction over the defendant.

First, the defendant alleges that he was not properly served with the summons and complaint. Secondly, defendant states that plaintiff lacks standing and/or capacity to sue because it was not a party to the mortgage contract entered into by the defendant. Defendant contends that as he did not execute an agreement with Wells Fargo, it is not clear, in the absence of any documentary evidence, how Wells Fargo Bank can be a successor in interest to Wachovia. In addition, defendant alleges that the plaintiff has failed to demonstrate in its complaint that it was the owner and holder of the note on the date of the commencement of the action. Lastly, defendant alleges that the plaintiff's complaint must be dismissed pursuant to BCL § 1312 as it is an out-of-state corporation doing business in New York and has not provided proof that it qualifies as a duly organized foreign banking corporation and as such may not maintain an action for foreclosure in New York. Defendant claims that Wells Fargo's principal place of business is in San Francisco, California.

Lisa Browne, Esq., counsel for the plaintiff, submits an affirmation in opposition to the motion in which she states that [*3]pursuant to CPLR 3211(e), the defendant has waived the affirmative defenses raised in his motion based upon the fact that he defaulted in answering the summons and complaint and this pre-answer motion was not timely filed within the time prescribed to answer the complaint. Counsel contends that the Second Department has held in Wells Fargo Bank Minn., N.A. v. Perez, 70 AD3d 817[2d Dept. 2010], that if a defendant fails to raise the issue of standing and/or capacity to sue as an affirmative defense in an answer or a timely pre-answer motion to dismiss, the issue of standing is waived pursuant to CPLR 3211(e).

Further, plaintiff's counsel contends that the plaintiff had proper standing at the time the action was commenced and as such, counsel argues that the complaint states a valid cause of action for foreclosure. Counsel states that as pled in the complaint, the plaintiff became the owner of the note and mortgage by virtue of a bank merger with the original lender and Wells Fargo Bank N.A., is successor to the original lender as a result of the merger. Therefor, plaintiff asserts that the complaint states a proper cause of action for foreclosure as it names the parties, the obligation, the default, and states that the plaintiff is the lawful holder of the note and mortgage. Counsel annexes a copy of the note and mortgage bearing the notarized signature of the defendant. In addition, counsel asserts that the plaintiff is authorized to bring an action for foreclosure in New York State pursuant to Section 200 of the Banking Law.

Plaintiff also asserts that the affidavit of the process server constitutes prima facie evidence of proper service pursuant to CPLR 308(2) and the defendant has failed to present any facts which would tend to rebut the presumption of proper service created by the affidavit of service.

Upon review of the defendant's motion and plaintiff's opposition thereto, this court finds that the defendant's motion for an order dismissing the action pursuant to CPLR 3211 is denied.

This Court finds that the defendant has failed to provide a sufficient factual basis other than speculative and conclusory allegations for his contention that the mortgage and note were owned by Wells Fargo Bank at the time the action was commenced. Moreover, the plaintiff submitted a copy of the merger document demonstrating that Wells Fargo Bank, the plaintiff herein, merged with and into Wachovia Bank effective November 1, 2009. Defendant has also not supplied any documentary evidence pursuant to CPLR 3211(a)(1) which would raise a question of fact as to whether the plaintiff is not the lawful holder of the note and [*4]mortgage (see Countrywide Home Loans, Inc. v Gress, 68 AD3d 709 [2d Dept. 2009][where the plaintiff is the assignee of the mortgage and the underlying note at the time the foreclosure action was commenced, the plaintiff has standing to maintain the action]; U.S. Bank, N.A. v Collymore,68 AD3d 752 [2d Dept. 2009]; Fannie Mae v Youkelsone, 303 AD2d 546 [2d Dept. 2003]; First Trust Nat'l Ass'n v. Meisels, 234 AD2d 414 [2d Dept. 1996])."In order to commence a foreclosure action, the plaintiff must have a legal or equitable interest in the mortgage (see Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204 [2d Dept. 2009]). A plaintiff has standing where it is both (1) the holder or assignee of the subject mortgage and (2) the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95[2d Dept. 2011]; also see Countrywide Home Loans, Inc. v. Gress, 68 AD3d 709 [2d Dept. 2009]; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2nd Dept. 2007]).

In addition, this Court finds that the defendant waived any defense that the plaintiff lacked standing or the capacity to commence the foreclosure action by failing to interpose an answer or file a timely pre-answer motion which asserted the defense of standing(see CPLR 3211(e); US Bank v Eaddy, 79 AD3d 1022 [2d Dept. 2010]; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983 [2d Dept. 2010]; Deutsche Bank Natl. Trust Co. v Hussain, 78 ASD3d 989 [2d Dept. 2010]; HSBC Bank, USA, v Dammond, 59 AD3d 679 [2d Dept. 2009]). As explained by the Appellate Division, Second Department, in Wells Fargo Bank Minnesota, N.A. v Mastropaola, 42 AD3d 242-243 [2d Dept. 2003], the defense of lack of standing is waivable as it affects only a court's power to render a judgment on the merits for the plaintiff and does not implicate the court's jurisdiction or competence to entertain an action. Therefore, this court finds that the plaintiff, as the holder of the note and mortgage at the time the action was commenced, had proper standing and capacity to sue for foreclosure on the note and mortgage.

Further, this court finds that the complaint sufficiently pleads a cause of action for foreclosure. "On a motion to dismiss a complaint, the pleading is to be afforded a liberal construction. The court is to determine only whether the facts as alleged fit within any cognizable legal theory. The facts pleaded are presumed to be true and are to be accorded every favorable inference (see Lucia v Goldman,68 AD3d 1064 [2d Dept. 2008]; Salvatore v Kumar, 45 AD3d 560 [2d Dept. 2007]). The complaint sufficiently alleges the particulars with respect to the execution and delivery of the note and mortgage; that the [*5]plaintiff is the holder of the note and mortgage for which the defendant is in default; and the amount due (see Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AAD3d 793 [2d Dept. 2012]; Wells Fargo Bank v Cohen, 80 AD3d 753 [2d Dept. 2011]; Argent Mtge. Co., LLC v. Mentesana, 79 AD3d 1079 [2d Dept. 2010]).

With respect to personal jurisdiction, a process server's affidavit stating proper service in accordance with CPLR 308, constitutes prima facie evidence of proper service (see Bank of NY v Samuels, 2013 NY Slip Op 3958 [2d Dept. 2013]; Bank, Natl. Assn. v Arias, 85 AD3d 1014 [2d Dept. 2011]; Scarano v Scarano, 63 AD3d 716 [2d Dept. 2009]). A defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, "generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing"(City of New York v Miller, 72 AD3d 726 [2d Dept. 2010]; also see Associates First Capital Corp. v Wiggins, 75 AD3d 614 [2d Dept. 2010]; Washington Mut. Bank v Holt, 71 AD3d 670[2d Dept. 2010]). Here the defendant failed to provide any specific facts to rebut the statements in the process server's affidavits (see Wachovia Bank, Natl. Assn. v. Carcano, 106 AD3d 726 [2d Dept. 2013]; Christiana Bank & Trust Co. v Eichler, 94 AD3d 1170 [2d Dept. 2012]).

Lastly, contrary to the defendant's contention, plaintiff is authorized to commence this mortgage foreclosure action. Even if Wells Fargo Bank, N.A. is a foreign bank which is not licensed in New York State, Banking Law § 200 authorizes foreign banks to loan money secured by mortgages on property in this State and to commence actions to enforce obligations under those mortgages (see First Wis. Trust Co. v Hakimian, 237 AD2d 249 [2d Dept. 1997]; Banque Arabe Et Internationale D'Investissement v One Times Sq. Assocs. Ltd. Partnership, 193 AD2d 387 [1st Dept. 1993]).

Accordingly, for all of the above stated reasons, the defendant's motion to dismiss the complaint is denied in its entirety.

Dated: July 30, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.