Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff Astoria Federal Savings and Loan Association (hereinafter Astoria or plaintiff), filed on April 16, 2013, under motion sequence number one, for a judgment of foreclosure and sale.

Notice of motion-Affirmation of regularity

Affirmation in support of legal fees

Affidavit of Astoria

Referee's oath

Proposed judgment of foreclosure and sale

Exhibits A-HRecitation in accordance with CPLR 2219 (a) of the papers considered on the cross-motion of Tenuh Servicing Inc. (hereinafter Tenuh), the alleged assignee of defendant Wachovia Bank National Association (hereinafter Wachovia), filed on May 3, 2013, for: (1) a declaratory judgment that the subordinate mortgage held by Tenuh Servicing, Inc. has priority over the subordinate mortgage held by Wells Fargo Bank, N.A. (hereinafter Wells Fargo) and (2) that any surplus monies from the sale of the subject property, if any, be paid directly to Tenuh pursuant to RPAPL 1351 (3).-Notice of cross-motion-Affirmation in support

Exhibits A-G

On October 5, 2009, Astoria commenced the instant residential mortgage foreclosure action by filing a summons, verified complaint and a notice of pendency with the Kings County Clerk's office.The complaint alleges, among other thing, that defendant Thomas A. Lawson executed a consolidation note (the subject note) in favor of the plaintiff in the amount of $657,500.00 secured by a mortgage on certain real property known as 18 Willoughby Avenue, Brooklyn, New York, Block 2089 Lot 38 (hereinafter the subject property) and thereafter, he defaulted on making payments due and owing on said note. No defendant has answered the complaint.

The court will focus specifically on an issue pertaining to RPAPL 1304. In its current form, RPAPL 1304 is applicable to any "home loan," as defined in subdivision (5) (a) of that section. When initially enacted, however, RPAPL 1304 applied only to "high-cost," "subprime," and "non-traditional" home loans, terms which were defined in subdivision (5) (L 2008, ch 472, § 2). In the same bill which enacted RPAPL 1304, the Legislature amended RPAPL 1302 to provide that, in any foreclosure action involving a "high-cost" or "subprime" home loan, the complaint must contain an affirmative allegation that, at the time the action is commenced, the plaintiff has complied with RPAPL 1304 (L 2008, ch 472, § 17). These provisions became effective with foreclosure actions commenced on or after September 1, 2008 (L 2008, ch 472, § 28) and were in effect and applicable to the instant action.Since this action was commenced on October 5, 2009, if the subject loan being foreclosed upon qualifies as a "high-cost home loan," a "subprime home loan," or "non-traditional home loan," the pre-commencement notice requirements of RPAPL 1304 would apply. Pursuant to RPAPL 1304 (2), the requisite 90-day notice was required to be sent to the borrower at least ninety days before commencement of the foreclosure action. Therefore, the court must ascertain whether or not the loan in foreclosure is such a loan and, if so, whether or not Astoria has satisfied such statutory requirements.

RPAPL 1304 (5) (e) defines "non-traditional home loan" as "a payment option adjustable rate mortgage or an interest only loan consummated between [January 1, 2003] and [September 1, 2008]" (Butler Capital Corp. v Cannistra, 26 Misc 3d 598 [Sup Ct Suffolk Co 2009]). The definitions of "subprime home loan" and "high-cost home loan" are much more complex (Id.). For example, RPAPL 1304 (5) (c) defines "subprime home loan" as "a home loan consummated between [January 1, 2003] and [September 1, 2008] in which the terms of the loan exceed the threshold as defined in RPAPL 1304 (5) (d) (Id.). Whether or not a loan satisfies one of the thresholds, as defined in RPAPL 1304 (5) (d), depends upon whether the loan is a first lien mortgage loan or a subordinate mortgage lien, and upon various other factors, such as annual percentage rate, time of loan consummation, periods of maturity, percentage points over yield on [*3]treasury securities, and the applicable initial or introductory periods (Id.).

Astoria submitted sworn statements from its counsel and Vice-President stating that the subject note in the instant foreclosure action is in the amount of $657,500.00. They both opined that the subject note was not a subprime, high cost or non-traditional home loan because it exceeded the conforming loan size limits in existence at the time. They further contended that, as such, a 90 day notice under RPAPL 1304 was not required to be sent to the borrower. They also admit that Astoria did not issue a 90 day notice under RPAPL 1304 for those reasons. They both referred to exhibit E, a documented denominated "Fannie Mae Historical Convention Loan Limits" to support their contention regarding conforming loan size limits that existed at the time.

Assuming, for the sake of argument, that exhibit E is in evidentiary form, Astoria has submitted no evidentiary proof that the reference to "Historial Conventional Loan Limits" within the document equate to the "conforming loan size" referred to in the statute (Id.). It is Astoria's burden to establish its contention that the notice requirements of RPAPL 1304 did not apply to the subject loan (see Emigrant Mortg. Co., Inc. v Persad, 117 AD3d 676 [2nd Dept 2014]). However, without an affidavit from one with personal knowledge as to whether or not this action involves a subprime, high cost or non-traditional home loan, Astoria cannot do so.

Accordingly, Astoria was required to establish, prima facie, its strict compliance with the notice requirements of RPAPL 1304 (Emigrant Mortg. Co., Inc. v Persad, 117 AD3d 676 [2nd Dept 2014], citing Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95 [2nd Dept 2011]). The admissions of Astoria's counsel and vice-president establish that it did not do so. Therefore, Astoria's application for a judgment of foreclosure and sale is denied without prejudice.

CPLR 1018 provides that upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action.

"CPLR 1018 addresses the situation in which a party transfers her interest in the subject matter of the action to another person while the action is pending, as, for example, by assignment of the claim (see NY Gen.Oblig.Law § 13—101) or conveyance of the relevant property. CPLR 1018 authorizes continuation of the action by or against the original party—the assignor/transferor—without the need for substitution of the assignee/transferee." (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1018).

Pursuant to CPLR 3001, the Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. To constitute a "justiciable controversy," there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect (see Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2nd Dept 2010]).

Tenuh is not named as a party in the caption of the instant complaint. In support of its right to make a motion for affirmative relief, Tenuh submitted its notice of appearance dated April 3, 2013. Tenuh's notice refers to an annexed assignment of a mortgage from Wachovia to Tenuh. Also included is an affidavit of a mailing of Tenuh's notice of appearance to Astoria's counsel and to Wells Fargo's counsel. Tenuh also submitted, among other things, a notice of [*4]appearance by Wells Fargo as the assignee of Wachovia. Wells Fargo's notice of appearance was dated November 27, 2012 and included an affidavit of service to Astoria's counsel.

Astoria's motion papers establish that Wachovia was served with the summons, complaint and notices pursuant to RPAPL 1303 and 1302 back in October of 2009. The November 27, 2012, notice of appearance of Wells Fargo appears to be timely pursuant to CPLR 320 (a). Generally, pursuant to CPLR 320 (b), an appearance by a defendant "is equivalent to personal service of the summons upon him" unless he moves to dismiss pursuant to CPLR 3211 (a) (8) or raises jurisdictional defenses (Yihye v Blumenberg,

Astoria has asserted that Tenuh's notice of appearance is improper. It is certainly untimely pursuant to CPLR 320 (a), assuming that successive notices of appearance related to successive assignments is permissible. However, Astoria admittedly received it and did not object to it. Astoria's counsel did contend that a notice of substitution of counsel was the more appropriate vehicle for Tenuh's counsel to apprise all parties of its appearance in the action as assignee of Wachovia.

Neither Wachovia, Wells Fargo nor Tenuh has filed or served a pleading in the instant action. Tenuh's cross-motion seeks a judgment declaring that its subordinate mortgage has priority over the subordinate mortgage of Wells Fargo without having interposed a pleading. Contrary to the requirments of CPLR 2214, Tenuh's motion papers do not cite any substantive or procedural legal authority for this relief. This fact alone supports denial of the motion on procedural grounds. However, Tenuh's motion seeks a declaratory judgment without having plead any claim for this relief. A defendant who has not interposed an answer or made any other pleading for affirmative relief may not be granted a declaratory judgment.Tenuh's cross motion pursuant to RPAPL 1351 (3) for surplus funds

RPAPL 1351(3) provides as follows:

Tenuh's motion for surplus funds is premature until such time as Astoria obtains a judgment of foreclosure and sale. The motion is premised on the claim that its subordinate mortgage has priority over the subordinate mortgage of Wells Fargo. Inasmuch as Tenuh's motion for a declaratory judgment has been denied, its cross-motion pursuant to RPAPL 1351 (3) is also denied without prejudice. In the event that either Astoria or Tenuh seeks the same relief in a subsequent motion, they are directed to annex the instant decision and order with their motion papers.

Astoria's motion for a judgment of foreclosure and sale is denied without prejudice.

Tenuh's motion a declaratory judgment that its subordinate mortgage has priority over the subordinate mortgage of Wells Fargo is denied.

Tenuh's motion for an order directing that surplus monies be paid directly to it pursuant to RPAPL 1351 (3) is denied without prejudice.