Upon the foregoing papers, plaintiff's motion, inter alia, for a Judgment of Foreclosure and Sale is granted; the cross motion of defendant James D. Henry for leave to amend his answer, vacate the Order of Reference dated May 7, 2013 and dismiss the complaint, is denied in accordance with the following.

This action to foreclose a certain mortgage dated June 22, 2001, encumbering the premises located at 7281 Amboy Road, Staten Island, New York, was commenced on June 19, 2009 by plaintiff's predecessor-in-interest, Citimortgage Inc., Successor by Merger to EAB Mortgage Company, Inc. Said mortgage was given to secure a Consolidation, Extension and Modification Agreement executed by defendant James D. Henry (hereinafter, defendant) on June 22, 2001. On or about July 9, 2009, defendant interposed a pro se verified answer to the complaint asserting a general denial and, as a single "defense and affirmative defense", that plaintiff failed to deliver two copies of a 90-day Pre-Foreclosure Notice required by RPAPL 1304. Commencing February 5, 2010, numerous conferences were held before this Court without resolution, and on or about May 7, 2013, this Court granted plaintiff's motion for summary judgment striking defendant's verified answer and appointing a referee to compute.^[FN1]

Presently before the court is (a) plaintiff's application (Motion Seq. No. 002) for a Judgment of Foreclosure and Sale, and (b) defendant's cross motion (Motion Seq. No. 003) for (1) leave to serve an amended answer pursuant to CPLR 3025(b), (2) vacatur of the Order of Reference granted on default pursuant to CPLR 5015(a), and (3) dismissal of the complaint pursuant to CPLR 3211(a). In his proposed amended answer annexed to the cross motion, [*2]defendant would assert thirty-three affirmative defenses, many if not all of which are wholly conclusory in nature.

In support of the cross motion, defendant contends in an affidavit that his lender's successor-in-interest (Citimortgage Inc.) did not have standing to commence this action in 2009. He further avers that "in a panic", he interposed an answer without retaining an attorney, and that, when the bank commenced this foreclosure action, he was "led to believe" and "assured" that he would be able to secure a modification of the subject loan. To that end, defendant claims to have expended a substantial amount of time submitting paperwork to the bank, but to no avail. Additionally, defendant claims that his 87-year old mother lives at the subject premises, and that her only source of income is social security.

Turning, first, to that branch of defendant's cross motion which seeks, inter alia, to vacate the default resulting in the Order of Reference pursuant to CPLR 5015(a)(1), it is the opinion of this Court that defendant has not established a reasonable excuse for his failure to oppose plaintiff's notice of motion for such relief dated February 28, 2012, or the one-year delay in seeking leave to vacate this Court's Order dated May 7, 2013 striking his answer and granting plaintiff's motion on default. In this regard, it is worthy to note that the only excuse proffered, i.e., that defendant was engaged in negotiations with the bank to secure a loan modification, does not, as a matter of law, constitute a reasonable excuse (see Bank of NY Mellon v Izmirligil, 88 AD3d 930, 931; Kouzios v Dery, 57 AD3d 949, 950; Antoine v Bee, 26 AD3d 306). ^[FN2] Under these circumstances, it is unnecessary to determine whether defendant has demonstrated the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, 725. Nevertheless, the Court is of the mind that certain of these purported defenses warrant comment.

At the outset, it should be noted that a party's lack of standing, even if true, does not constitute a jurisdictional defect in a mortgage foreclosure action (see U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048-1049), and that any such defense is deemed waived unless asserted in either a verified answer or a pre-answer motion to dismiss (see CPLR 3211[e]; Deutsche Bank Natl. Trust Co. v Islar, __ AD3d __, 2014 NY Slip Op 07468; Wells Fargo Bank Minn., N.A. v Mastropaola, 42 AD3d 239, 244). Here, as defendant did neither, he is not entitled to challenge plaintiff's standing at this juncture.

Turning to the cross movant's assertion that this foreclosure action should be dismissed based upon plaintiff's alleged noncompliance with the notice requirements of RPAPL 1304 (which presently requires the lender to serve the borrower with two copies of a so-called 90-Day Notice prior to commencing a legal action), it is undisputed that this statute, as it existed at the commencement of this action in 2009, applied solely to high-cost home loans, subprime home loans or non-traditional home-loans, ^[FN3] and "cease[d] to apply...if the borrower no longer occupies [*3]the residence as the borrower's principal dwelling [emphasis added]" (RPAPL1304[3], enacted L 2008, ch 472, § 2, eff September 1, 2008).

The qualification contained in subdivision (1) as originally enacted is of particular significance here, as (1) the Court is unable to definitively determine whether the loan in question is one of the types to which the statute then-applied , and (2) defendant has failed to allege or submit proper evidentiary proof sufficient to rebut the averment of plaintiff's attorney that the subject loan is not of this sort. In any event, defendant is not entitled to vacatur of the Order of Reference or dismissal of the complaint on this ground, even if true, since a violation of this statutory condition precedent does not deprive the court of subject matter jurisdiction (see CPLR 5014[a][4]; Pritchard v Curtis, 101 AD3d 1502, 1504-1505).

Additionally, defendant has failed to establish that the "real estate [at issue]...is or will be occupied by the borrower as the borrower's principal dwelling", either at the time of commencement or presently (RPAPL 1304[5][b][iv]). Notably, in this regard, plaintiff's affidavit of service indicating that defendant was served with process on June 30, 2009 by personal delivery at "555 Union Hill Rd., Englishtown, N.J., 07726" was acknowledged in defendant's pro se answer, wherein he also provides a New Jersey telephone number. More to the point, defendant-mortgagor avers in his affidavit in support of the cross motion that he is the owner of the subject premises which is occupied by his elderly mother.^[FN4] Accordingly, RPAPL 1304 would appear to be inapplicable to the present action.

As for defendant's assertion that plaintiff never engaged in "good faith" settlement negotiations pursuant to CPLR 3408(a), it is the opinion of this Court that to whatever extent said allegation may be true, such failure would not warrant the per se dismissal of the complaint. Although foreclosure settlement conferences are mandated by statute and court rule in certain cases, e.g., where the mortgagor "is a resident of the property subject to foreclosure" (see CPLR 3408[a]; 22 NYCRR 202.12-a; see generally Independence Bank v Valentine, 113 AD3d 62), the cross-moving defendant does not argue, and has not directed this Court, to any controlling authority supportive of an argument that the failure to hold such a conference operates to deprive the court of subject matter jurisdiction (see Pritchard v Curtis, 101 AD3d at 1504; cf. CPLR 5015[a][4]).

In view of the foregoing, so much of defendant's cross motion as requests leave to serve an amended answer has been rendered academic.

Accordingly, it is

ORDERED, that plaintiff's motion, inter alia, for a Judgment of Foreclosure and Sale is granted; and it is further

ORDERED, that the cross motion of defendant James D. Henry is denied.

E N T E R,

Hon. Thomas P. Aliotta

J.S.C.