Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff Bank of America, N. A. (hereinafter BANA), filed on October 27, 2014, under motion sequence number one, for an order (1) granting a default judgment against all defendants pursuant to CPLR 3215; (2) appointing a referee to compute [*2]pursuant to RPAPL 1321; and (3) striking defendants John Doe # 4 through John Doe #10 from the caption.

- Notice of Motion

- Affirmation in support

- Exhibits A-N

- Affidavit in suppport

- Proposed order of reference

On November 11, 2013, 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 July 30, 2008, defendant Arthur Reznik (hereinafter Reznik) executed and delivered a note (the subject note) in favor of BANA in the amount of $71,000.00. On the same date, Reznik secured the subject note by executing and delivering a mortgage in favor of BANA on certain real property known as 412 Avenue W, Brooklyn, New York 11223 Block 7179 Lot 2 (hereinafter the subject property). Reznik defaulted on making monthly payments due and owing on said note on April 1, 2013 and thereafter.

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

BANA 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 [*3]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]).

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, 981 [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 BANA 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]).

RPAPL 1304 currently applies to any home loan, as defined in RPAPL 1304 (5) (a). When the statute was first enacted, it applied only to high cost, subprime, and non-traditional home loans (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 104 [2nd Dept 2011] [citing L. 2008, ch. 472, § 2]). In 2009, the Legislature amended the statute, "effective January 14, 2010, to take its current form, by deleting all references to high-cost, subprime, and non-traditional home loans" (Aurora Loan Servs., LLC, 85 AD3d at 105 [citing L. 2009, ch. 507, § 1—a]).

"[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).

The only documents within the instant motion which address service of the RPAPL 1304 notice is the affirmation of Jennifer R. Brennan, BABA's counsel (hereinafter Brennan) and the affidavit of Ann M. Keystek, BANA's officer (hereinafter Keystek). Paragraph four of Brennan's affirmation state that the 90-day pre-foreclosure [*4]notice ^[FN1] was sent to the borrower as per the affidavit of Keystek. Brennan's affirmation, however, does not give the date of the mailing or the mailing address that the notice was sent. Keystek's sole reference to RPAPL 1304 is in paragraph eight (8) of her affidavit.

Therein she stated the following:

The Court notes that there was no exhibit labeled as exhibit 4 annexed to the motion papers. Nevertheless, BANA has admitted that the notice requirements of RPAPL 1304 apply to the instant action and through its counsel and its officer, have averred that it has been complied with. Keystek's affidavit much like Brennan's affirmation does not give the date of the mailing or the mailing address that the notice was sent. Keystek also does not refer to Reznik by name as the person to whom the mailing was sent, instead stating that the notice was sent to the borrower. Keystek does not state that she served the 90 day notice or identify the individual who did so. Nor does she refer to a standard office practice by BANA to ensure that items are properly addressed and mailed (see Nocella v Fort Dearborn Life Ins. Co. of NY, 99 AD3d 877 [2nd Dept 2012]). The presumption of receipt by the addressee "may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2nd Dept 2001]). BANA has, therefore, failed to submit an affidavit of service evincing that it properly served the mortgagor pursuant to RPAPL 1304 (Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]). Consequently, BANA has not demonstrated strict compliance with RPAPL 1304.

In light of the foregoing, plaintiff's motion for an order granting a default judgment against all defendants pursuant to CPLR 3215 and for an order of reference pursuant to RPAPL 132 is denied. The denial is without prejudice until such time as plaintiff demonstrates compliance with RPAPL 1304.

BANA also seeks an order permitting the striking of defendants John Doe # 4 through John Doe # 10 from the caption. The request is supported by an affirmation of BANA'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 BANA's [*5]motion and there is no prejudice to any party, the request is granted pursuant to CPLR 3217(d).

In the event that BANA 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 BANA's motion which seeks an order granting a default judgment against all defendants pursuant to CPLR 3215 is denied without prejudice.

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

That branch of BANA's motion which seeks an order striking defendants John Doe # 4 through John Doe #10 from the caption is granted.

The foregoing constitutes the decision and order of this Court.

J.S.C.