ORDERED that this motion (No.001) by the plaintiff for summary judgment againt the answering defendant, the deletion of unknown party defendants and the appointment of a referee to compute is considered under CPLR 3212, 1003 and RPAPL § 1321 and is granted.

The plaintiff commenced this action to foreclose a mortgage given by defendant Vatash on March 18, 2003 to secure a mortgage note executed by her on that same date to the plaintiff 's predecessor-in interest by merger. The plaintiff alleges that defendant Vatash defaulted in her payment obligations on February 1, 2009 and that such default continues to date. Following service of the summons and complaint, defendant Vatash appeared herein by service of an undated answer in which she asserted one affirmative defense alleging "laches, unclean hands, waiver, assumption of risk and/or estoppel" (see Aswer attached as Exhibit F to the plaintiff's moving papers).

By the instant motion, the plaintiff moves for summary judgment dismissing the answer served by the mortgagor defendant, the deletion of the unknowns defendants named in the caption and the appointment of referee to compute amounts due under the terms of the subject mortgage. Defendant Vatash opposes the motion on grounds such as a lack of standing on the part of the plaintiff to prosecute its claims for foreclosure and sale. She also claims that the motion is premature due to the absence of discovery and the existence of a recent and ongoing dialogue between the plaintiff and defendant Vatash's brother regarding a loan modification. Defendant Vatash also claims a lack of receipt of any 90 day default notice and, in effect, an entitlement to the court's invocation of an estoppel against the plaintiff because it allegedly owes defendant Vatash money under the terms of a settlement of litigation commenced elsewhere. Defendant Vatash further asserts that questions of fact exist which prelude the granting of the relief requested by the plaintiff on this motion. For the reasons stated below, the motion (#001) is granted.

Entitlement to a judgment of foreclosure is established, as a matter of law, where the plaintiff produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact (see Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895, 964 NYS2d 548 [2d Dept 2013]; Solomon v Burden, 104 AD3d 839, 961 NYS2d 535 [2d Dept 2013]; US Bank Natl. Ass'n v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; Baron Assoc., LLC v Garcia Group Enter., 96 AD3d 793, 946 NYS2d 611 [2d Dept 2012]; Citibank, N.A. v Van Brunt Prop., LLC, 95 AD3d 1158, 945 NYS2d 330 [2d Dept 2012]; HSBC Bank v Shwartz, 88 AD3d 961, 931 NYS2d 528 [2d Dept 2011]; US Bank N.A. v Eaddy, 79 AD3d 1022, 1022, 914 NYS2d 901 [2010]; Zanfini v Chandler, 79 AD3d 1031, 912 NYS2d 911 [2d Dept 2010]). This standard is enlarged to include a demonstration that the plaintiff [*2]is possessed of the requisite standing to pursue its claims where, and only where, the defense of standing is due and timely asserted by a defendant possessed of such defense (see Deutsche Bank Nat. Trust Co. v Whalen, 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013]; Capital One, N.A. v Knollwood Prop. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]; Deutsche Bank Nat. Trust Co. v. Rivas, 95 AD3d 1061, 945 NYS2d 328 [2d Dept 2012]; U.S. Bank Natl. Ass'n v Eaddy, 79 AD3d 1022, supra; U.S. Bank, N.A. v Adrian Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007]).

The foregoing rules are discernible from the general precept that the standing of a plaintiff is not an element of his or her claim (see id., at 42 AD3d 250). This is particularly evident in the mortgage foreclosure arena wherein recent appellate case authorities have repeatedly held that a lack of standing is merely an affirmative defense which must be timely raised by a defendant possessed of such defense or it is waived (see CPLR 3018[b]; CPLR 3211[e]; U.S. Bank Natl. Ass'n v Denaro, 98 AD3d 964, supra; Capital One, N.A. v Knollwood Prop. II, LLC, 98 AD3d 707, supra; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, 883 NYS2d 135 [2d Dept 2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, supra). The defense of standing is thus not jurisdictional in nature (see Citimortgage, Inc. v. Friedman, 109 AD3d 573, 970 NYS2d 706 [2d Dept. 2013]; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 962 NYS2d 301 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013]; US Bank Natl. Ass'n v Tate, 102 AD3d 859, 958 NYS2d 722 [2d Dept.2013]; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810, 954 NYS2d 181 [2d Dept 2012]; Bank of New York v Alderazi, 99 AD3d 837, 951 NYS2d 900 [2d Dept 2012]; U.S. Bank Natl. Ass'n. v Denaro, 98 AD3d 964, supra; U.S. Bank v Emmanuel, 83 AD3d 1047, 921 NYS2d 320 [2d Dept 2011]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-244, supra). Once waived, a standing defense may not be resurrected by its assertion in opposition to a motion for summary judgment or in an untimely motion to dismiss or one to vacate a default an answering (see Capital One, N.A. v Knollwood Prop. II, LLC, 98 AD3d 707, supra; JPMorgan Chase Bank, N.A. v Bauer, 92 AD3d 641, 938 NYS2d 190 [2d Dept 2012]; U.S. Bank Natl. Ass'n v Eaddy, 79 AD3d 1022, supra; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, supra; HSBC Bank, USA v. Dammond, 59 AD3d 679, 875 NYS2d 490 [2d Dept 2009]).

Here, the moving papers established the plaintiff's entitlement to summary judgment on its complaint as such papers included copies of the mortgage, and the unpaid note executed by defendant Vatash in March of 2003, together with due evidence of a default under the terms thereof secured by the mortgage (see CPLR 3212; RPAPL § 1321; Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895, supra; Solomon v Burden, 104 AD3d 839, supra; US Bank Natl. Ass'n v Denaro, 98 AD3d 964, supra; Baron Assoc., LLC v Garcia Group Enter., 96 AD3d 793, supra). It was thus incumbent upon defendant Vatash to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of an affirmative defenses asserted in her answer or otherwise possessed by her (see Flagstar Bank v Bellafiore, 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012]; Deutsche Bank Nat. Trust Co. v. Posner, 89 AD3d 674, 933 NYS2d 52 [2d Dept 2011]; Grogg Assocs. v South Rd. Assocs., 74 AD3d 1021 907 NYS2d 22 [2d Dept 2010]; [*3]Wells Fargo Bank v Karla, 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]; Washington Mut. Bank v O'Connor, 63 AD3d 832,880 NYS2d 696 [2d Dept 2009]; Aames Funding Corp. v Houston, 44 AD3d 692, 843 NYS2d 660 [2d Dept 2007]). A review of the opposing papers submitted by the defendant Vatash reveals that no such question of fact was raised or defense established.

Defendant Vatash's challenge to the plaintiff's standing is procedurally defective as such challenge was waived by her failure to assert the standing defense in a pre-answer motion to dismiss or in her answer (see Citimortgage, Inc. v. Friedman, 109 AD3d 573, supra; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, supra; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, supra). She is thus without any entitlement to argue for a denial of this motion due to a purported lack of standing on the part of the plaintiff (see Citimortgage, Inc. v. Friedman, 109 AD3d 573, supra; Capital One, N.A. v Knollwood Prop. II, LLC, 98 AD3d 707, supra; JPMorgan Chase Bank, N.A. v. Bauer, 92 AD3d 641, 938 NYS2d 190 [2d Dept 2012]; U.S. Bank Natl. Ass'n v Eaddy, 79 AD3d 1022, supra). In any event, the standing defense asserted by defendant Vatash is substantively without merit since the plaintiff became the owner and holder of the note and mortgage upon its merger with the original lender (see Banking Law § 602; Capital One, N.A. v Brooklyn Flatiron, LLC, 85 AD3d 837, 925 N.Y.S.2d 350 [2011]; Ladino v Bank of America, 52 AD3d 571, 861 N.Y.S.2d 683 [2d Dept 2008]; Barclay's Bank of New York, N.A. v Smitty's Ranch, 122 AD2d 323, 504 N.Y.S.2d 295 [2d Dept 1986]). No showing of any assignment of the note and mortgage or other transfer of the note to the plaintiff is required (see Ladino v Bank of America, 52 AD3d 571, supra).

Defendant Vatsh's next claims that the plaintiff's motion is premature since there has been no discovery. This claim is also rejected. CPLR 3212(f) provides that "should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just". Appellate case authorities have long instructed that to avail oneself of the safe harbor this rule affords, the claimant must "offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff" (Martinez v Kreychmar, 84 AD3d 1037, 923 NYS2d 648 [2d Dept 2011]; see Seaway Capital Corp. v 500 Sterling Realty Corp., 94 AD3d 856, 941 NYS2d 871 [2d Dept 2012]). In addition, the party asserting the rule must demonstrate that he or she made reasonable attempts to discover facts which would give rise to a genuine triable issue of fact on matters material to those at issue (see Swedbank, AB v Hale Ave. Borrower, LLC, 89 AD3d 922, 932 NYS2d 540 [2d Dept 2011]). The "mere hope or speculation that evidence sufficient to defeat a motion for summary judgment. The opposing papers submitted by defendant Vatash were insufficient to satisfy this statutory burden. Her claims of prematurity are thus rejected as unmeritorious.

Defendant Vatash's bald and conclusory claims of her lack of receipt of a 90 day notice from the plaintiff is similarly unavailing. The self serving, bald and conclusory denial of receipt is insufficient to rebut the plaintiff's pleaded claim of compliance with the notice provisions of RPAPL [*4]1304 and evidence that such notice was sent that is included in the moving papers (see US Bank Nat. Ass'n v Caronna, 92 AD3d 865, 938 NYS2d 809 [2d Dept 2012]; US Bank Nat. Ass'n v Weinman, 2013 WL 3172455, *3, [Sup. Ct. Suffolk Cty, 2013]).

Defendant Vatash claims that factual issues regarding the amounts allegedly due and owing are in dispute, preclude the granting of summary judgment in favor fo the plaintiff are also lacking in merit. It is well established that "a dispute as to the exact amount owed by the mortgagor to the mortgagee may be resolved after a reference pursuant to RPAPL 1321, and the existence of such a dispute does not preclude the issuance of summary judgment directing the sale of the mortgaged property" (First Nationwide Bank, FSB v Goodman, 272 AD2d 433, 707 NYS2d 669 [2d Dept 2000]; Long Is. Sav. Bank of Centereach, FSB v Denkensohn, 222 AD2d 659, 635 NYS2d 683 [2d Dept 1995]; Crest/Good Mfg. Co. v Baumann, 160 AD2d 831, 554 NYS2d 264 [2d Dept 1990]; Johnson v Gaughan, 128 AD2d 756, 757, 513 NYS2d 244 [2d Dept 1987]; Federal Natl. Mtge. Assn. v Connelly, 84 AD2d 805, 444 NYS2d 147 [2d Dept 1981]; see also 1855 East Tremont Corp. v Col/ado Holdings LLC, 102 AD3d 567, 2013 WL 257418 [1st Dept 2013]; Shufelt v Bulfamante, 92 AD3d 936, 940 NYS2d 108 [2d Dept 2012]).

Also lacking in merit are the defendant's claims that ongoing discussions with the plaintiff regarding a possible modification of the subject loan preclude the granting of this motion by the plaintiff. Recent appellate case authorities have confirmed the long standing, well established principle of contract law that a mortgagee has no obligation to modify a mortgage loan prior to or after a default (see Graf v Hope Bldg., Corp., 254 NY 1, 4-5; 171 NE 884 [1930]; Wells Fargo Bank, NA v Meyers, 108 AD3d 9, 966 NYS2d 108 [2d Dept 2013]; Wells Fargo v Van Dyke, 101 AD3d 638, 958 NYS2d 331 [1st Dept 2012]; Bank of America, Nat. Ass'n v Commack Properties, LLC, 2010 WL 5139219 [E.D.NY 2010]; US Bank Natl. Assn. v Orellana, 40 Misc 3d 1204(A), 2013 WL 336823 [Sup Ct, Suffolk County, 2013]; JP Morgan Chase Bank Natl. Assoc. v Ilardo, 36 Misc 2d 359, 940 NYS2d 829 [Sup Ct. Suffolk County, 2012]). Defendant Vatash remains free to pursue claims that challenge amounts owing at the proceedings conducted by the referee to compute the amounts owing provided a due a demand for such proceedings is made upon such referee (see Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282, 850 NYS2d 219 [3d Dept 2007]).

The court further rejects defendant Vatash's nuanced claims that the plaintiff's settlement of litigation in other forums and its notification that defendant Vatash is entitled to some form of remuneration under the terms of such settlement constitutes due proof of the plaintiff's engagement in deceptive acts and improper practices such as the "robo-signing" of litigation documents, all of which work to estop the plaintiff from enforcing its contractual remedy of foreclosure and sale in this action. Claims of this nature suffer from relevancy and other proof issues as recently recognized by appellate case authorities wherein such claims have been rejected (see Citimortgage, Inc. v Bustamante, 107 AD3d 752, 968 NYS2d 513 [2d Dept 2013] ("despite the appellant's allegations of improper practices by the plaintiff's agents in unrelated matters, he failed to meet his burden of establishing fraud, misrepresentation, or other misconduct on the part of the plaintiff in this matter which could warrant vacatur of the default judgment of foreclosure and sale"); Wells Fargo, N.A. [*5]v Levin, 101 AD3d 1519, 958 NYS2d 227 [3d Dept 2012]; ("law firm's conduct the cited matters does not establish that it engaged in fraudulent or deceptive practices in this case").

The court thus finds that defendant Vatash failed to rebut the plaintiff's prima facie showing of its entitlement to the summary judgment demanded by it on its complaint and to the dismissal of the multiple grounded, single affirmative defense set forth in the answer of defendant Vatash. Those portions of this motion wherein the plaintiff seeks such relief are granted.

Those portions of the instant motion wherein the plaintiff seeks an order deleting the unknown defendants listed in the caption and an amendment of the caption to reflect same are granted. All future proceedings shall be captioned accordingly. The action thus continues solely against defendant Vatash. Under these circumstances, the plaintiff is entitled to the appointment of a referee of the type contemplated by RPAPL § 1321, as all issues raised by the pleadings have been determined in the plaintiff's favor (see RPAPL § 1321; Bank of East Asia, Ltd. v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]; Vermont Fed. Bank v Chase, 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; LaSalle Bank, NA v Pace, 31 Misc 3d 627, 919 NYS2d 794 [Sup. Ct. Suffolk County 2011], aff'd, 100 AD3d 970, 955 NYS2d 161 [2d Dept 2012]).

The record reflects that conferences of the type by the Laws of Laws of 2008, Ch. 472 § 3-a as amended by the Laws of 2009 Ch. 507 § 10 or by CPLR 3408 were previously conducted on no fewer than nine occasions in the specialized mortgage foreclosure part, the last of which was held on December 12, 2012, and that no further conferences are required under any statute, law or rule. Under these circumstances, the plaintiff is entitled to the issuance of an order of reference due to the award of summary judgment granted to the plaintiff on this motion.

The proposed order appointing a referee to compute, as modified by the court, has been signed simultaneously herewith.

DATED: _________________________________________________

THOMAS F. WHELAN, J.S.C.