In this action to recover upon a Note, plaintiff HPHD Investors Group LLC moves for, among other relief, summary judgment to foreclose on properties located at 265 Legion Street and 8 Belmont Avenue, both in Brooklyn, New York (the "Properties") and to recover any deficiency from defendants Mikal, Samira, and Irania Stephens and Virgo Fabric & Notions, Inc. (the "Guarantors") pursuant to a guaranty agreement.

In support of its motion, plaintiff submits a note in the amount of $410,383.84, dated January 30, 2012, signed by Mikal Stephens, as president for Belmont Realty Management Corp. ("Belmont"), providing for the payment of interest only in various installments until February 1, [*2]2013, at which point the principal balance, along with any unpaid interest, would come due (the "Note"). Plaintiff also submits a mortgage agreement dated January 30, 2012, granting plaintiff a security interest in the two Properties. Although not attached to its motion papers, a copy of an agreement dated January 30, 2012, signed by the Guarantors guaranteeing payment of the Note was filed with the complaint. Plaintiff claims, through an affidavit by its Chief Lending Officer, Joseph J. Gherardi, that Belmont defaulted by failing to pay a portion of an installment payment due August 1, 2012, and failing to pay the entire installment payment due on September 1, 2012. A Notice of Default, dated September 28, 2012, sent to Belmont and the Guarantors, demands immediate payment of the outstanding principal and interest.

Plaintiff commenced this action on January 18, 2013, seeking to foreclose on the Properties and to recover any deficiencies from the Guarantors, and submits affidavits evincing service upon all named defendants and upon Ms. Lucas, Mr. Jorge, and the entity Foster Lingerie and Panty Hose, who plaintiff now seeks to name as tenant defendants. Belmont and the Guarantors answered through their attorney on April 9, 2013, asserting various defenses, including that Mikal and Samira Stephens were not properly served. Defendants have, however, not moved to dismiss the action as to those individuals.

By notice of motion dated July 10, 2013, plaintiff moved for summary judgment against Belmont and the Stephens defendants, to strike the answer of Belmont and the Stephens defendants, for an order appointing a referee, and to amend the caption to substitute the names of tenants "Jane" Lucas, "John" Jorge, and Foster Lingerie and Panty Hose for Jane Doe "1" and John Does "2" and "3" and to strike the remainder of the language in the caption.

Defendants oppose the motion,^[FN1] arguing that there are triable issues of fact as to whether plaintiff properly served Belmont and all Stephens defendants in this action.^[FN2] Defendants also contend that plaintiff is guilty of unclean hands and that it has engaged in a widespread pattern of fraud, as evidenced by "the current climate and the settlements with the banks." The only evidence defendants submit in opposition is an affidavit from Mikal Stephens, stating that the mortgage signed by Belmont contained a usurious interest rate, and that one of the parcels, the property located at 265 Legion Street, is residential property whose residents have not benefitted [*3]from the protections of the residential foreclosure program, such as the 90 day notice provided by NY RPAPL § 1304.

With respect to defendants' claim of improper service, the Court notes that plaintiff has produced affidavits of service as to all defendants. Defendants have not produced any evidence, such as affidavits from the defendants in question, other than a self-serving statement from their attorney, to raise an issue of fact as to whether defendants Mikal and Samira Stephens were properly served. Mikal Stephens does not contest the service upon him in his affidavit. Moreover, the Court notes that defendants have waived their defense of lack of personal jurisdiction by failing to move to dismiss the complaint within sixty days of filing their answer (see NAB Asset Venture IV v Orangeburg Equities, 299 AD2d 528, 529 [2d Dept 2002]). Defendants' argument that the interest rate on the loan is usurious is meritless as the 12% interest rate set forth in the Note does not exceed the 16% maximum interest rate established by New York General Obligation Law § 5-501 (see also Banking Law §14-a(1)), and at any rate, the defense of civil usury is unavailable to a corporate defendant and to an individual guarantor of a corporate obligation (see Tower Funding v Berry Realty, 302 AD2d 513, 514 [2d Dept 2003], citing General Obligations Law § 5-521(1)). Finally, defendants' contention that the residents of 265 Legion Street should have been afforded some of the protections available in a residential foreclosure action is unavailing, as the 90-day notice required by NY RPAPL § 1304 and the mandatory settlement conferences provided by CPLR 3408 apply only to home loans made to "natural persons."

As defendants have not submitted evidence raising a triable issue of fact as to plaintiff's prima facie case or a viable defense, plaintiff's motion to strike their answer and for summary judgment is granted as to all defendants except the guarantors, Mikal, Samira, and Irania Stephens and Virgo Fabric & Notions, Inc., since plaintiff has failed to annex to the motion papers proof of the guaranty.

The foregoing constitutes the decision and order of the Court.

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HON. CAROLYN E. DEMAREST, J.S.C.