The following papers numbered 1 to 13 read on this motion by the plaintiff for an order dismissing the answer and affirmative defenses of the defendant, HECTOR B. CIPRIAN; granting summary judgment in favor of the plaintiff; granting a default judgment against all other non-answering defendants; for an order pursuant to RPAPL § 1321 appointing a referee to ascertain and compute the amount due to the plaintiff; and for an order modifying the caption to substitute certain named individuals in place of the John Doe defendants:

In this mortgage foreclosure action, plaintiff moves for an order striking the answer of defendant, Hector B. Ciprian; granting summary judgment against said defendant on the ground that the answer contains no valid defense and no triable issue of fact exists; 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.

The action pertains to the foreclosure of the property located at 86-43 102nd Avenue, Ozone Park, New York. Based upon the record before this court, the defendant signed a note and mortgage in the principal amount of $486,975.00 in favor of BNY Mortgage Company LLC on April 7, 2006. The mortgage was subsequently assigned to The Bank of New York Mellon by assignment dated November 5, 2008. A Loan Adjustment Agreement dated May 24, 2012, was executed by defendant Ciprian increasing the principal balance on the mortgage to $611,120.02. The defendant defaulted on the note and mortgage on May 1, 2013 when he failed to make the monthly mortgage payment as well as the subsequent payments.

Plaintiff accelerated the defendants' mortgage and brought an action to foreclose its mortgage by filing a summons and complaint on December 6, 2013. Issue was joined by service of defendant Hector B. Ciprian's answer with affirmative defenses dated January 16, 2014.

In support of the instant motion for summary judgment, the plaintiff submits the affirmation of counsel, Jennifer M.S. Byrne, Esq.; an affidavit of merit and amounts due from Lynda Buehler, the Document Coordinator for Bayview Loan Servicing LLC, servicing agent for the plaintiff herein; a copy of the Note and Mortgage; copies of the affidavits of service on all the defendants; a copy of the pleadings; a copy of the mortgage assignment; 90 day notice of intent to foreclose; copy of the RPAPL 1304 notices sent to the defendant with the summons and complaint; and an affidavit regarding the 2009 Residential Foreclosure Law.

In her affirmation, plaintiff's counsel asserts that on April 7, 2006, defendant obtained a mortgage loan from in favor of BNY Mortgage Company LLC in the principal amount of $486,975.00 in order to finance his purchase of the subject property. The mortgage loan was memorialized by a note and mortgage executed by Hector B. Ciprian and recorded on May 4, 2006. Counsel states that the loan was subsequently assigned to [*2]The Bank of New York Mellon by assignment dated November 5, 2008. Thus, counsel states that the plaintiff is the current holder of the note and mortgage and was the holder of the note and mortgage on the date the action was commenced. The written assignment of the mortgage was recorded on February 9, 2009. The record contains copies of the indorsed note, mortgage and assignment of mortgage.

The affidavit of Lynda Buehler, Document Coordinator of Bayview Loan Servicing, LLC, servicing agent for the Plaintiff dated March 14, 2014, states that based upon her personal review of the bank records, as of December 6, 2013, the date the complaint was filed in this action, plaintiff was in possession of the Note by virtue of an assignment and was the mortgagee of record. She states that on May 24, 2012, defendant entered into a Loan Adjustment Agreement with the plaintiff wherein the principal balance was increased to $611,120.02. On January 18, 2013, defendant entered into a second Loan Adjustment Agreement with the plaintiff wherein the principal balance on the mortgage was increased to $640,768.32 and $130,000 was deferred. Ms. Buehler states that based upon her review of the records the defendant initially defaulted on the loan by failing to make the contractually required payment due on May 1, 2013. A demand letter which complied with the terms of the mortgage was sent to the defendant on June 17, 2013 providing that he could cure his default within 30 days. She states that as of February 28, 2014, there was due and owing an unpaid principal balance of $509,078.06 plus debt deferment of $130,300 as well as interest, late charges, escrow advances and monies advanced for taxes, insurance and maintenance of the premises for a total of $663,227.27. Ms. Buehler also states that 90 days prior to the commencement of the action the plaintiff sent a pre-foreclosure notice to the defendant by registered, certified, and first class mail pursuant to RPAPL § 1304.

Plaintiff also submits an "Affidavit Regarding 2009 Residential Foreclosure Law" signed by Shaneza Deendayal, document coordinator of Bayview Loan Servicing LLC. In her affidavit dated January 2, 2014, Ms. Deendayal states that the loan which is the subject of the present action is not a home loan within the meaning of RPAPL § 1304(5)(a) because the mortgagor does not reside in the mortgaged property. As a result, plaintiff contends that it is not required to adhere to the notice and reporting requirements of RPAPL 1304(5) and 1306 and is not obligated to adhere to the settlement conference requirements of RPAPL § 3408.

Plaintiff contends, based upon the evidence submitted, that [*3]plaintiff has made a prima facie showing that it is entitled to a summary judgment and an order of reference. Further, counsel asserts that the plaintiff was lawfully served with a summons and complaint and that the court therefore has personal jurisdiction.

It is well settled that a plaintiff in a mortgage foreclosure action establishes a prima facie case of entitlement to summary judgment through submission of proof of the existence of the underlying note, mortgage and default in payment after due demand (see Witelson v Jamaica Estates Holding Corp. I, 40 AD3d 284 [1st Dept. 2007]; Marculescu v Ouanez, 27 AD3d 701 [2d Dept. 2006]; US. Bank Trust National Assoc. v Butti, 16 AD3d 408 [2d Dept. 2005]; Layden v Boccio, 253 AD2d 540 [2d Dept. 1998]; State Mortgage Agency v Lang, 250 AD2d 595(2d Dept.1998]). Upon such a showing, the burden shifts to the defendant to produce evidence in admissible form sufficient to raise a material issue of fact requiring a trial.

This Court finds that the plaintiff's submissions are sufficient to establish its entitlement to summary judgment against defendant mortgagor, Hector B. Ciprian. The 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 Ciprian (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 assignment of note and an affidavit of merit from Ms. Lynda Buehler establishing Ciprian's default in payment. The plaintiff demonstrated proper service of the summons and complaint and showed by admissible evidence that it had properly been assigned the note and mortgage as of the date of the commencement of the action. In addition, the plaintiff has submitted sufficient proof to show that notices were served on the defendant in compliance with RPAPL §§ 1303 and 1304. Further, although the defendant states that he is attempting to secure a loan modification to reduce the interest rate, the pending loan modification, if any, is not a meritorious defense to the foreclosure action as there is no guarantee the borrower will qualify for a loan modification. In addition, all of the affirmative defenses asserted in the answer are generalized conclusory assertions unsupported by tangible evidentiary proof and are insufficient to raise a triable issue of fact with respect to the foreclosure of the mortgage. Therefore, the moving papers demonstrate, prima facie, that none of the asserted defenses set forth in the answer of defendant are meritorious and plaintiff is therefore entitled to summary [*4]judgment on its claims against the defendant (see Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882 [2d Dept. 2010]).

The burden then shifted to defendant to establish the existence of a triable issue of fact (see State Bank of Albany v Fioravanti, 51 NY2d 638 [1980]). In opposition, the defendant has not opposed the motion on the merits, however, defendant Ciprian submits an affidavit stating that he fell behind on the mortgage when he became ill and sought medical treatment. He was then provided with a loan modification but he states that he was unable to keep up with the payments. He requests that the motion for summary judgment be denied and he be provided with another loan modification which would consist of a reduction in principal.

Defendant's answer and his affirmation in opposition to the motion fail to raise a meritorious defense to the plaintiff's motion for summary judgment. The defendant's assertion that he hopes to be able to arrange for a loan modification to obviate the foreclosure is not a defense and does not affect the plaintiff's rights to sell the property pursuant to a Judgment of Foreclosure and Sale (see Bank of NY v Agenor, 305 AD2d 438 [2d Dept. 2003]).

Accordingly, 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 delete the John Doe defendants and substitute the names of the tenants, Giovanni Aponte; Maria Santiago; Natasha Aponte; Sandra Fortuna; Hector Ciprian, Jr.; Carmen Gonzalez, Gloria Santana; Elvin Ciprian; John Doe and Jane Doe. That branch of the motion for a default judgment against the remaining defendants who have not answered or appeared herein is granted. Plaintiff's further application for the appointment of a referee to compute the amounts due under the subject mortgage is also granted. Further, it is hereby,

ORDERED, that the Referee shall not be held responsible for the payment of penalties or fees pursuant to this appointment. Purchaser or any title company hired by the purchaser shall be responsible for any penalties or fees incurred as a result of late payment of the tax as required by City Administrative Code 19 RCNY 23-08(a), which requires payment within 30 days. The Purchaser shall hold the Referee harmless from any such penalties accessed as a result of late payment of these taxes.

Order Granting Summary Judgment and Appointing Referee to [*5]Compute signed contemporaneously herewith.

Long Island City, NY

ROBERT J. MCDONALD

J.S.C.