Upon the following papers numbered 1 to9read on this motionby the plaintiff for confirmation of the report of the referee to compute a substitution of plaintiff pursuant to CPLR 1018 and a judgment of foreclosure and sale; Notice of Motion/Order to Show Cause and supporting papers 1 - 6 ; Opposing papers7; Reply papers8-9; Other; (and after hearing counsel in support and opposed to the motion):

ORDERED that this motion by the plaintiff for an order confirming the report of the referee to compute, a substitution of plaintiff and for a judgment of foreclosure and sale is considered under CPLR 1018 and RPAPL § 1351 and is granted.

In this mortgage foreclosure action, the plaintiff was awarded summary judgment against the obligor/mortgagor defendant, Flor Rojas, in July of 2010 and an order appointing a referee to compute amounts due under the mortgage loan documents. That motion was opposed by answering defendant Rojas but her contentions in opposition were rejected by the court in memo decision dated July 16, 2010. The plaintiff now moves for confirmation of the report of the referee to compute and for issuance of a judgment of foreclosure and sale.

The motion is opposed by defendant Rojas who asserts various challenges to the plaintiff's demands for relief. The defendant's claim that the referee's report should not be confirmed because the defendant was not afforded notice and the opportunity to be heard on the issues embodied by the RPAPL 1321 reference directed in the prior order dated July 16, 2010, is unavailing. While the duly appointed referee to compute is generally required to hold a hearing on notice to those who have appeared in the action and to take proofs with respect to the issue of amounts due the plaintiff under the terms of the loan documents (see CPLR 4313; RPAPL § 1321), no hearing is required where a defendant waives his or her right to notice of the hearing by admitting the default and the amount due in his or her answer or otherwise (see LBV Prop. v Greenport Dev. Co., 188 AD2d 588, 591 NYS2d 70 [2d Dept 1992]; Blueberry Inv. Co. v Ilana Realty, 184 AD2d 906, 585 NYS2d 564 [2d Dept 1992]). Even in the absence of a waiver, the failure to conduct a hearing on due notice to appearing parties does not necessarily warrant remitting the matter back to the referee to hold a hearing. For it has been long recognized that unlike references to hear and determine, references to hear and report pursuant to RPAPL § 1321 are advisory only, which leaves the court as the ultimate arbiter of the issues referred (see CPLR 4311; Shultis v Woodstock Land Dev. Assoc., 195 AD2d 677, 599 NYS2d 340 [3d Dept 1993]).

Here, the record reveals that the defendant successfully prosecuted a petition for a discharge in bankruptcy by which she was purportedly released from any obligation to personally pay any deficiency in the amount owing to the plaintiff after application of the proceeds realized from the public sale of the premises. The defendant's jural interest in the computations of the referee was thus eradicated by her conduct in pursuing the discharge and gives rise to a waiver and/or estoppel of any right to a hearing on the matters referred (see Wells Fargo Bank N.A. v Hornes, 94 AD3d 755, 942 NYS2d 129 [2d Dept 2012]; MJD Constr. v Woodstock Lawn & Home Maintenance, 293 AD2d [*2]516, 740 NYS2d 402 [2d Dept 2002]). Under these circumstances, a failure, if any, on the part of the referee to hold a hearing regarding his computations after due notice to the defendant does not warrant a denial of the plaintiff's demand for confirmation of the report of the referee or any of the other relief demanded by the plaintiff on this motion.

The remaining objections to the relief requested that are advanced in the defendant's opposing papers are unavailing. The defendants' claim that her bankruptcy discharge precludes this court's issuance of a judgment of foreclosure and sale lack merit, as such discharge does not terminate the plaintiff's entitlement to the remedy of foreclosure and sale. It is well settled law that a "bankruptcy discharge extinguishes only one mode of enforcing a claim-namely, an action against the debtor in personam-while leaving intact another-namely, an action against the debtor in rem." (Johnson v Home State Bank, 501 U.S. 78 [1991]; see also In re Marcakis, 254 B.R. 77 [Bkrtcy. E.D.NY, 2000]). Contrary to the contentions of defendant Rojas, the substitution of plaintiffs as requested in the moving papers is appropriate under CPLR 1018, since the plaintiff has established the existence of a post-commencement assignment of the note and mortgage to the proposed now plaintiff (see CPLR 1018; Citibank, N.A. v Van Brunt Prop., LLC, 95 AD3d 1158, 945 NYS2d 330 [2d Dept 2012]; GRP Loan, LLC v Taylor, 95 AD3d 1172, 945 NYS2d 336 [2d Dept 2012]). The defendant's assertion of a purported statutory defense arising under federal law is unavailing as such defense was waived by the defendant's failure to assert it in her answer. The claim for dismissal of the complaint due to a purported failure to prosecute on the part of the plaintiff is without basis in law (see Docteur v Interfaith Med. Ctr., 90 AD3d 814, 935 NYS2d 114 [2d Dept 2011]; Maspeth Fed. Sav. and Loan Ass'n v Simon-Erdan, 67 AD3d 750, 888 NYS2d 599 [2d Dept 2009]). The defendant's further challenges are likewise rejected.

In view of the foregoing, the plaintiff's motion is granted and the proposed judgment attached to the moving papers, as modified by the court, has been signed.