Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff, First United Mortgage Banking Corp. (hereinafter First United or the plaintiff), filed on December 9, 2013, under motion sequence number three, for an order (1) granting a default judgment against all the defendants; (2) appointing a referee to compute pursuant to the RPAPL 1321; and (3) amending the caption to substitute the First United with Wilmington Trust Company as Successor Trustee to Bank of America, National Association (successor by merger to LaSalle Bank National Association) as Trustee for Morgan Stanley Mortgage Loan Trust 2007-12; and (4) substituting the John Doe defendant with Serena Williams, Shatoya Williams, Andre Dorsey, Tyrone Rushing, Jim Mullings, Adam Mendonca, Al Elliot, Lemar Gukary and Christopher "Doe."

Notice of Motion

Affirmation of regularity

Affidavit of plaintiff's loan servicer

Limited power of attorney

Exhibit A-H

Proposed order of reference

Affirmation in accordance with AO/431/11

On March 24, 2008, plaintiff commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency with the Kings County Clerk's office.

The complaint alleges in pertinent part that defendant Manuel Valdivieso (hereinafter Valdivieso) executed a note (the subject note) in favor of the plaintiff in the amount of $652,000.00 secured by a mortgage on certain real property known as 804 Evergreen Avenue, Brooklyn, New York, Block 3451 Lot 135 (hereinafter the subject property) and thereafter, he defaulted on making payments due and owing on said note. Plaintiff sent Valdivieso a notice of his default and of its intent to accelerate the total amount due on the subject note if the default was not cured. Valdvieso did not cure the default.

No defendant has answered the complaint or submitted opposition to the instant motion.

The instant motion contains an affirmation of plaintiff's counsel, an affidavit of its loan servicer, a copy of the loan servicer's limited power of attorney, an affirmation in compliance with Administrative Order 548/10; and eight annexed exhibits labeled A through H. Exhibit A is the summons and complaint. Exhibit B is the subject note. Exhibit C is a default notice letter dated January 28, 2008, from America's Servicing Company to Valdivieso. Exhibit D is the notice of pendency. Exhibit E are the affidavits of service of the commencement papers on all defendants. Exhibit F is a notice of appearance by the People of the State of New York. Exhibit G are the affidavits of additional mailing pursuant to CPLR 3215 (g) (3) (I). Exhibit H is a document demonstrating that Valdivieso is not in military service.

The instant motion is made five years after the commencement of the action to foreclose a mortgage on a three family home. Plaintiff contends that the five year delay is attributable to three things, namely, the reassignment of the matter from Steven Baum's firm to plaintiff's current counsel, the time needed to comply with the new verification requirements of Administrative Order 548/10, and the hold FEMA placed on the action after Hurricane Sandy. The explanation for the delay is reasonable.

When seeking an order of reference to determine the amount that is due on an encumbered property, a plaintiff must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant's default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL 1321; 1—2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01 [4] [k] [note: online edition]).

As a preliminary matter the Court reviews plaintiff's compliance with the mandatory pre-commencement notices prior to reviewing the requirements for the appointment of a referee. RPAPL 1303 was enacted in July 2006, as part of the Home Equity Theft Prevention Act (hereinafter HETPA) (see First Natl. Bank of Chicago v Silver, 73 AD3d 162 [2nd Dept 2010]; Senate Introducer Mem. in Support, Bill Jacket, L. 2006, ch. 308, at 7—8) (Board of Directors of House Beautiful at Woodbury Homeowners Ass'n, Inc. v Godt, 96 AD3d 983 [2nd Dept 2012]). As relevant here, that section provides that "[t]he foreclosing party in a mortgage foreclosure action, involving residential real property shall provide notice to ... any mortgagor if the action relates to an owner-occupied one-to-four family dwelling" (RPAPL § 1303 [1] [a]) (Id.). The statute "requires the foreclosing party in a residential mortgage foreclosure action to deliver statutory-specific notice to the homeowner, together with the summons and complaint" (First Natl. Bank of Chicago v Silver, 73 AD3d at 165, 899 NYS2d 256). "[T]he foreclosing party has the burden of showing compliance therewith and, if it fails to demonstrate such compliance, the foreclosure action will be dismissed" (Id. at 166).

The full text of RPAPL 1303 (1) now reads:

The statutorily required language of the notice is set forth in RPAPL 1303 (3), which became effective February 1, 2007. The appearance and procedural details of the notice are set forth in RPAPL 1303 (2), which also became effective February 1, 2007 and which states:

In this action, the plaintiff's summons and complaint and notice of pendency were filed with the County Clerk on March 24, 2008, after the effective date of RPAPL 1303, thereby requiring compliance with the notice provisions set forth in the statute (WMC Mortg. Corp. v Thompson, 24 Misc 3d 738 [NY Sup Ct Kings Co. 2009]). Given the explicit statutory requirements regarding the content, type size and paper color of the notice, the plaintiff must submit proper evidentiary proof to establish full compliance with the substantive and procedural [*3]requirements of RPAPL 1303.

CPLR 2214 (c) requires the moving party to furnish to the court all other papers not already in the possession of the court necessary to the consideration of the questions involved. Here the plaintiff has annexed affidavits of service attesting to service of the summons, complaint and RPAPL 1303 notice on the defendants. However, plaintiff did not annex a copy of the RPAPL 1303 notice that was purportedly sent to the defendants. Accordingly, the plaintiff did not provide a sufficient basis upon which the court may conclude as a matter of law that the plaintiff has complied with the statute (Countrywide Loans v Taylor, 17 Misc 3d 595 [NY Sup. Ct. Suffolk Co. 2007]).

Since the plaintiff has failed to establish compliance with the notice requirements of RPAPL 1303, its application for a default judgment and an order of reference must be denied (Id.). In the interest of judicial economy, the Court did not review the motion papers for other issues effecting the motion for an order of reference.

Plaintiff's counsel and loan servicer have both averred that RPAPL 1304 is inapplicable to the instant action because it was commenced on March 4, 2008 which is nearly six months prior to September 1, 2008, the effective date of the statute. Plaintiff's counsel has also averred, as an additional ground, that the borrower no longer resides at the subject property. The effective date of RPAPL 1304 is indeed September 1, 2008. However, L.2008, c. 472, § 3-a, amended by L.2009, c. 507, § 10, eff. Dec. 15, 2009, provides:

Part F (7) of the Kings County Supreme Court Uniform Civil Term Rules further provides as follows:

The plaintiff's motion papers are silent regarding CPLR 3408 and whether the subject note is for a subprime home loan or a high-cost home loan. Furthermore, contrary to the requirements of Part F (7) of the Kings County Supreme Court Uniform Civil Term Rules, the motion papers do not contain an affidavit of investigation substantiating that the borrower does not reside in the subject property.

Accordingly, in the event the plaintiff moves for the same relief , it is directed to annex the instant decision and order to the motion papers. It is also directed to identify whether the loan in foreclosure is a subprime home loan or high-cost home loan. And finally, it is directed to comply with Part F of the Kings County Supreme Court Uniform Civil Term Rules, in particular as it pertains to exemption from settlement conference.

Plaintiff has also moved to amend the caption to substitute the plaintiff with the current holder of the note and mortgage, Wilmington Trust Company as Successor Trustee to Bank of America, National Association (successor by merger to LaSalle Bank National Association) as Trustee for Morgan Stanley Mortgage Loan Trust 2007-12.

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).

Here, the plaintiff has annexed a copy of the mortgage and the subject note executed by Valdivieso. Also annexed is a copy of the assignment of the subject note dated May 12, 2009, from First United to Bank of America, National Association Successor by Merger to LaSalle Bank National Association as Trustee for MSM 2007-12. Furthermore, plaintiff annexed a copy of the assignment of the subject note dated June 4, 2009, from Bank of America, National Association Successor by Merger to LaSalle Bank National Association as Trustee for MSM 2007-12 to Wilmington Trust Company as Successor Trustee to Bank of America, National Association (successor by merger to LaSalle Bank National Association) as Trustee for Morgan Stanley Mortgage Loan Trust 2007-12. The chain of assignments supports the plaintiff's application, therefore, its motion for an order pursuant to CPLR 1018 substituting plaintiff First [*4]United with Wilmington Trust Company as Successor Trustee to Bank of America, National Association (successor by merger to LaSalle Bank National Association) as Trustee for Morgan Stanley Mortgage Loan Trust 2007-12 is granted.

Through the affirmation of it counsel, plaintiff has demonstrated that it has served the commencement papers on Serena Williams, Shatoya Williams, Andre Dorsey, Tyrone Rushing, Jim Mullings, Adam Mendonca, Al Elliot, Lemar Gukary and Christopher "Doe" as "John Does", and that there were no other "John Does" occupying the mortgaged premises. Accordingly, that branch of its motion seeking to substitute John Doe with Serena Williams, Shatoya Williams, Andre Dorsey, Tyrone Rushing, Jim Mullings, Adam Mendonca, Al Elliot, Lemar Gukary and Christopher "Doe" is granted (Deutsche Bank Nat. Trust Co. v Islar, —- NYS2d —&mdash, 2014 WL 5638883 [2nd Dept 2014 citing CPLR 1024 and Flagstar Bank v Bellafiore, 94 AD3d 1044 at 1046 [2nd Dept 2012]).

The portion of plaintiff's motion seeking a default judgment against all the defendants is denied without prejudice.

That portion of plaintiff's motion seeking the appointment of a referee to compute pursuant to the RPAPL 1321 is denied without prejudice.

That portion of plaintiff's motion seeking to amend the caption to substitute the plaintiff with Wilmington Trust Company as Successor Trustee to Bank of America, National Association (successor by merger to LaSalle Bank National Association) as Trustee for Morgan Stanley Mortgage Loan Trust 2007-12 is granted.

That portion of plaintiff's motion seeking to substitute John Doe with Serena Williams, Shatoya Williams, Andre Dorsey, Tyrone Rushing, Jim Mullings, Adam Mendonca, Al Elliot, Lemar Gukary and Christopher "Doe" is granted.

The foregoing constitutes the decision and order of this Court.

J.S.C.