The following papers numbered 1 to 15 were read on this motion by plaintiff for an order dismissing the answer of defendant, Patricio Saldana; granting summary judgment in favor of the plaintiff; for a default judgment against all remaining defendants who have not answered; for an order pursuant to RPAPL § 1321 appointing a referee to ascertain and compute the amount due to the plaintiff; and for an order amending the name of the defendant to Patricio Saldana, and to substitute certain individuals as party-defendants in lieu of the "John Doe" defendants:

[*2]Papers

Numbered

Notice of Motion Affidavits-Exhibits-Memo of Law......1 - 7

Affirmation in Opposition-Affirmation.................8 - 12

Reply Affirmation....................................13 - 15

In this mortgage foreclosure action, plaintiff moves for an order striking the answer of defendant Patricio Saldana i/s/h/a Patricia Saldana; granting summary judgment against said defendant on the ground that his answer contains no valid defense and no triable issue of fact; granting a default judgment against the remaining defendants who have not answered; appointing a referee to compute the sum due and owing to plaintiff; and amending the caption. Defendant Patricio Saldana has submitted opposition to the motion.

This foreclosure action pertains to the multi-unit rental property located at 33-32 102nd Street, Corona, New York. Based upon the record before this court, the defendant, Patricio Saldana, entered into a note and mortgage with Fairmont Funding Ltd. on February 23, 2005 in the principal amount of $649,000.00. Monthly installment payments of principal and interest were to be made on the note at the rate of $4,263,47 beginning on April 1, 2005. As collateral security for the payments on the note, defendant also executed a mortgage in favor of Fairmont Funding, Ltd. dated February 23, 2005. Plaintiff asserts that it acquired the note and mortgage from Fairmont Funding through an assignment dated April 12, 2010. The defendant/owner does not reside in the premises. The plaintiff submits that defendant defaulted on the note when he failed to make his monthly mortgage payments beginning January 1, 2010. Plaintiff contends that as of the time of the complaint there was due and owing to the plaintiff the principal balance of $612,268.19, in addition to interest, escrow advances, late charges, and other additional fees.

The plaintiff subsequently accelerated the defendant's mortgage and brought an action to foreclose by filing a lis pendens and summons and complaint on April 13, 2010. Pursuant to the order of this court dated October 26, 2011, Ned Kassman, Esq. was appointed as Guardian Ad Litem and plaintiff was granted leave to serve Patricio Saldana by publication. By order dated December 15, 2012, Ned Kassman was relieved and Joe Risi, Esq. was substituted as Guardian Ad Litem.

On May 12, 2010, defendant, through attorney David J. Melo, [*3]Esq. served an answer denying the material allegations of the complaint and asserting eight affirmative defenses, including lack of personal jurisdiction, failure to comply with Banking Law § 6 - 1, failure to comply with the provisions of RPAPL §§ 1303 and 1304, asserting that plaintiff is not the holder of te note and mortgage, that there was a modification of the mortgage accepted by the plaintiff, that plaintiff lacks standing, that the complaint fails to state a cause of action, and that the complaint fails to name a necessary party. By stipulation dated May 16, 2012, the plaintiff accepted service of defendant's answer on condition that the defendant waived any defenses based upon personal jurisdiction. The parties also agreed to engage in a settlement conference in the Residential Foreclosure Settlement Part.

Pursuant to CPLR 3408, a foreclosure settlement conference was held on September 19, 2012. Defendant was represented by counsel at the conference. Referee Lance Evans found that the defendant/borrower failed to demonstrate the requisite compliance in order to qualify for plaintiff's government styled modification product. A preliminary conference was held on November 1, 2012. A Compliance conference was held on February 14, 2013, and the plaintiff filed a note of issue on May 22, 2013.

In support of the instant motion for summary judgment and an order of reference, the plaintiff submits the affirmation of counsel, Jason B. Desiderio, Esq., the affidavit of Tina Armour, the Vice President of Loan Documentation of Wells Fargo Bank, N.A. d/b/a America's Servicing Company, the servicer for the plaintiff; a copy of the Note and Mortgage; the affidavit of service for Patricio Saldana and defendant's stipulation to accept service; a copy of the pleadings; a copy of the mortgage assignment; 90 day notice of default and intent to foreclose; and a copy of the RPAPL 1304 notices sent to the defendant with the summons and complaint.

In her affidavit in support of the motion, Ms. Armour states that Wells Fargo collected and posted payments, maintained the escrow account, handled all aspects of customer service, and referred the instant mortgage for foreclosure when the defendant defaulted. She states that she has reviewed the books and records maintained by Wells Fargo in the ordinary course of business and makes her affidavit upon personal knowledge and review of the business records. She states that the promissory note which was indorsed in blank was in the possession of the plaintiff prior to the commencement of the action on April 13, 2010. She states that the defendant defaulted under the terms of the note and mortgage [*4]by failing to pay the monthly installment payment due on January 1, 2010 as well as the payments due thereafter. She states that a 90 day pre-foreclosure notice was sent to the defendant and the default stated when the notice was not cured. She states that the total amount due to the plaintiff as of July 10, 2013, including principal, interest, late charges, disbursements for taxes and hazard insurance amounts to $823,402.44

Thus, plaintiff seeks summary judgment asserting that it has standing as the evidence demonstrates that it is the present holder of the note and mortgage and as the note and the mortgage were physically transferred to the plaintiff prior to the commencement of the action. Plaintiff contends that the evidence demonstrates that a sum of money was advanced to the defendant, that defendant signed the note and mortgage containing the terms of repayment, that the defendant failed to pay the installments as provided for in the note and mortgage following proper service of the appropriate default notices, and that the answer interposed by the defendant fails to set forth a triable issue of fact or a meritorious defense.

With respect to the defendant's affirmative defenses, plaintiff submits, first, that the evidence demonstrates that the plaintiff complied with all conditions precedent including serving notices pursuant to RPAPL §§ 1303 and 1304 to the owner and occupants of the premises and that HSBC has standing as it is the present holder of the note and mortgage. Pursuant to stipulation the defendant waived the defense of lack of personal jurisdiction.

Second, with respect to the affirmative defense of failure to state a cause of action, counsel asserts that the complaint is sufficient on its face as it clearly alleges all of the elements necessary to state a cause of action for foreclosure including the fact that the plaintiff is the holder of a note and mortgage on which the defendant defaulted and failed to cure the default despite given adequate notice of default.

Third, plaintiff asserts that all of the necessary parties have been joined as defendants. In addition, the defendant's answer does not identify any party not served with process who is necessary for the adjudication of the matter on the merits.

Fourth, plaintiff asserts that HSBC has the lawful capacity to bring the action as a bank organized under the laws of the State of New York that transacts business in the State of New York. Further, the current provisions of Banking Law § 6-01 enacted after the consummation of the loan are not applicable to [*5]this action.

Fifth, with respect to standing, counsel states that a plaintiff has standing where it is both the holder or assignee of the underlying note and mortgage at the time the action is commenced (see CitiMortgage, Inc. v Rosenthal, 88 AD3d 759 [2d Dept. 2011][in a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced] Bank of NY v Silverberg, 86 AD3d 274, [2d Dept. 2011] U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept. 2009]).

Sixth, counsel asserts that the fact that the defendant is seeking a loan modification is not a defense to the foreclosure action and further, the bank has not approved a modification as of the date of the motion for summary judgment.

In opposition, David J. Melo, Esq. counsel for defendant, contends that summary judgment should be denied on the ground that the plaintiff has failed to make a prima facie case of entitlement to summary judgment as a matter of law. Counsel contends that the affidavit of Tina Armour is insufficient as she has failed to specify what her specific duties are as Vice- President of Loan Documentation. In addition, he claims that the Armour affidavit is insufficient because Ms. Armour does not state when her company, Wells Fargo, became the servicer of the loan for the plaintiff. He also states that although the affidavit states that plaintiff was in possession of the note at the time the action was commenced, Ms. Armour does not state the basis of her information. Counsel states that Ms. Armour also does not state the basis of her information regarding mailings of documents to the defendant and therefore her statements are hearsay. In addition, Mr. Saldana submits an affidavit stating that the tenants, who the plaintiff seeks to add as party- defendants, have not resided at the premises for over two years.

Upon review and consideration of the plaintiff's motion for summary judgment, defendant's affirmation in opposition and plaintiffs reply thereto, this court finds as follows:

Here, the plaintiff established prima facie, its entitlement to summary judgment through submission of proof of the existence of the underlying note, mortgage and default in payment after due demand (see GRP Loan, LLC v Taylor, 95 AD3d 1172[2d Dept 2012] Deutsche Bank Natl. Trust Co. v Posner, 89 AD3d 674 [2d Dept. 2011]) Bancorp v Pompee, 82 AD3d 935 [2d Dept.2011] Wells Fargo Bank v Cohen, 80 AD3d 753 [2d Dept. 2011]). Witelson v Jamaica [*6]Estates Holding Corp. I, 40 AD3d 284 [1st Dept. 2007] Marculescu v Ouanez, 27 AD3d 701 [2d Dept. 2006] Campaign v Barba, 23 AD3d 327 [2d Dept.2005] US. Bank Trust National Assoc. v Butti, 16 AD3d 408 [2d Dept. 2005]).

This Court finds that the plaintiff's submissions are sufficient to establish its entitlement to summary judgment against defendant mortgagor, Patricio Saldana. The plaintiff's moving papers demonstrate, prima facie, that none of the asserted defenses set forth in the answer of defendant are meritorious and plaintiff is entitled to summary judgment on its claims against defendant (see EMC Mortg. Corp. v Riverdale Assocs., 291 AD2d 370 [2d Dept. 2002] State of New York v Lang, 250 AD2d 595 [2d Dept. 1998]). As stated above, the complaint herein sufficiently sets forth a valid cause of action for foreclosure. Plaintiff has submitted a copy of the mortgage, note, and an affidavit from Ms. Armour establishing defendants' default in payment. The plaintiff demonstrated proper service of the summons and complaint and showed by admissible evidence that it had been properly been assigned the note and mortgage as of the date of the commencement of the action.

Further, Ms. Armour states in her affidavit, which is based upon her personal review of the plaintiff's business records, that HSBC was the holder of the note and mortgage at the time the action was commenced. Thus, plaintiff presented sufficient proof that it had standing to commence the action as it was both the holder and assignee of the subject mortgage and underlying note at the time the action is commenced (see Homecomings Fin., LLC v Guldi, 108 AD3d 506 [2d Dept 2013] Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931 [2d Dept. 2013] US Bank N.A. v Cange, 96 AD3d 825[2d Dept 2012]).

As the plaintiff has made a prima face case for summary judgment, the burden shifts to the defendant to produce evidence in admissible form sufficient to raise a material issue of fact In opposition to the motion, although the defendant's counsel made several allegations with regard to the insufficiency of the affidavit of Ms. Armour which do not have merit, defendant, in his affidavit, has not disputed that he executed the note and mortgage, defaulted on his loan payments, received notice of the default or attempted to cure his default. In addition, although defendant states that ceratin necessary parties have not been joined, the defendant has not specified who those parties are. This court finds, therefore, that the defendant's assertions in opposing the motion are without merit and do not raise a triable question of fact. [*7]

Accordingly, this court finds that plaintiff's submissions are sufficient to establish its entitlement to summary judgment and also finds that the conclusory allegations set forth in defendant's affirmative defenses are insufficient to defeat the motion.

Therefore, the plaintiff's motion for summary judgment is granted and the affirmative defenses contained in the defendant's answer are stricken. The submissions further reflect that plaintiff is entitled to amend the caption to substitute the names of Braulio Amaro, Jaime Romero, and Louis Mamani, in place of John Doe. That branch of the motion to correct the notice of pendency and complaint to correct the plaintiff's name to Patricio Saldana, nunc pro tunc, and for an order deleting the address of the plaintiff in the caption is granted. That branch of the motion for a default judgment against the remaining defendants who have not answered or appeared herein is granted. Plaintiff's application for the appointment of a referee to compute the amounts due under the subject mortgage is granted.

Settle order on notice.

Dated: January 23, 2014

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.