Recitation in accordance with CPLR 2219 (a) of the papers considered on the ex-parte motion of plaintiff PHH MORTGAGE CORPORATION (hereinafter PMC or plaintiff), filed on October 24, 2012, for an order (1) appointing a referee to compute pursuant to RPAPL 1321; and (2) striking defendants John Doe No. 1 through # 10 from the caption.

- Affirmation of regularity

Affidavit of plaintiff's Vice President

Exhibits A-F

- Affirmation in compliance with Administrative Order 431/11

- Proposed order of reference

On January 31, 2011, 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 on December 21, 2006, defendant Robert D. Koch (hereinafter "Koch" or "the mortgagor") executed and delivered to USAA Federal Savings Bank (hereinafter UFSB) a note in its favor in the principal sum of $212,000.00 (hereinafter the note). On that same date, he also executed and delivered to Mortgage Electronic Registration Systems Inc. (hereinafter MERS) as nominee for UFSB (the subject mortgage) a mortgage on certain real property known as 273 Albany Avenue Unit 1B, Brooklyn, New York Block 1376 Lot 1002 (hereinafter the subject property) to secure the note. The mortgage and note was subsequently assigned to the PMC.

PMC alleges that Koch failed to make payments when due and defaulted on the subject note and that PMC accelerated the note and commenced the instant action based on his default. PMC also alleges that no defendant has appeared or answered the complaint.

PMC seeks an order permitting the striking of the John Doe defendants from the caption. The request to strike John Doe #1 through #10 from the caption is supported by an affirmation of PMC's counsel attesting to the fact that they are not necessary parties to the action. Inasmuch, as no defendant has appeared, answered the complaint or opposed PMC's motion and there is no prejudice to any party, the request is granted.

PMC also seeks an order appointing a referee to compute pursuant to RPAPL 1321. RPAPL 1321 provides in pertinent part as follows:

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 [*3]Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01[4][k] [note: online edition]).

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing (U.S. Bank Nat. Ass'n v Poku,—-118 AD3d 980, —- [2nd Dept 2014] citing CPLR 3215[f]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2nd Dept 2014]).

As a preliminary matter the Court reviews plaintiff's compliance with the mandatory pre-commencement notices prior to reviewing the requirements for an accelerated judgment or for the appointment of a referee. The affidavit of plaintiff's process server, the affirmation of its counsel, and the copy of the RPAPL 1303 notice annexed to the motion papers, demonstrate that the plaintiff complied with the notice requirements of RPAPL 1303.

RPAPL 1304 provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type" (RPAPL 1304 [1]; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]). RPAPL 1304 sets forth the requirements for the content of such notice (see RPAPL 1304 [1]), and further provides that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (RPAPL 1304 [2]; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]).

"[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013] citing, Aurora Loan Servs., LLC, 85 AD3d at 106). If the foreclosing party fails to establish that the statutory notices were satisfied the foreclosure action will be dismissed ( First Nat. Bank of Chicago, 73 AD3d 162 [2nd Dept.2010]). Furthermore, failure to comply with the notice requirements are not required to be plead as affirmative defenses in an answer (Id ).

"Such notice shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice. Notice is considered given as of the date it is mailed. RPAPL 1304 (2) specifically requires that the notice shall contain a list of at least five housing counseling agencies as designated by the division of housing and community renewal, that serve the region where the borrower resides.

The only document which addressed service of the RPAPL 1304 notice was the affirmation of PMC's counsel. PMC's counsel stated in paragraph eight of her affirmation [*4]that the requisite 90-day notice ^[FN1] was sent to the borrower on October 11, 2010 and that a copy of the notice is annexed as exhibit F to the motion. Exhibit F contained two letters addressed to Koch, one addressed to him at the subject property, the other to a different address. Each letter contains the identical language required by RPAPL 1304. Neither letter, however, includes a list of housing counseling agencies.

In the interest of judicial economy, the court did not continue to review PMC's motion papers for problems after discovering the above mentioned issues. In the event that PMC seeks the same relief in a subsequent motion, it is directed to annex the instant decision and order with its motion papers.

That branch of PMC's motion which seeks to amend the caption by striking the John Doe defendants #1 through #10 is granted.

That branch of PMC's motion which seeks an order appointing a referee to compute pursuant to RPAPL 1321 is denied without prejudice.

The foregoing constitutes the decision and order of the court.

J.S.C.