The following numbered papers read on this motion by plaintiff for summary judgment against defendant Marilyn Leto a/k/a Marilyn Passaris pursuant to CPLR 3212, to strike the answer, including set-offs and counterclaims of defendant Marilyn Leto pursuant to CPLR 3126, for leave to amend the caption by substituting "Jane" Passaris as defendant "Jane Doe," and striking reference to defendant "John Doe," and for leave to enter a default judgment against the defaulting defendants, and for leave to appoint a referee to compute the sums due and owing plaintiff.

Papers

Numbered

Notice of Motion - Affidavits - Exhibits1-6

Answering Affidavits - Exhibits7-10

Reply Affidavits -Exhibits11-13

"Supplemental Reply" Affidavits-Exhibits14-17

Upon the foregoing papers it is ordered that the motion is determined as follows:

Plaintiff commenced this action on February 14, 2013 to foreclose a mortgage as against real property known as 67-44 Kessel Street, Forest Hills, New York as security for the payment of a note dated March 12, 1999, evidencing a loan in the principal amount of $221,000.00 plus interest from Roslyn National Mortgage Corp. (Roslyn). In the complaint, plaintiff alleges that it is the holder of the note and mortgage, and defendant Marilyn Passaris defaulted in paying the mortgage installment due on July 1, 2012, and as a consequence, plaintiff elected to declare the entire mortgage debt to be due and owing.

Defendant Marilyn Passaris s/h/a Marilyn Leto a/k/a Marilyn Passaris served an answer, asserting various affirmative defenses, including lack of personal jurisdiction due to improper service of process and failure to comply with RPAPL 1304, and interposing counterclaims. Plaintiff served a reply with affirmative defenses, including the expiration of the applicable statutes of limitation. Defendants New York City Environmental Control Board and "Jane" Passaris s/h/a "Jane Doe" are in default in appearing or answering the complaint.

A residential foreclosure conference was held on May 3, 2013 and continued on July 19, 2013. At the next scheduled continuance date of October 18, 2013, defendant Marilyn Passaris and her counsel failed to appear. By order dated October 18, 2013, the Court Attorney Referee, in effect, released the case from the residential foreclosure settlement conference part, by directing the parties to appear for a preliminary conference scheduled for December 5, 2013.

Defendant Marilyn Passaris opposes the motion. The other defendants have not appeared in relation to the motion.

At the outset, to the extent defendant Marilyn Passaris asserts the court lacks personal jurisdiction due to improper service of process, she failed to move to dismiss the complaint upon such ground within 60 days of service of a copy of her answer, and has made no application to extend the period of time upon the ground of undue hardship (CPLR 3211[e]). As a consequence, such defense is deemed waived (CPLR 3211[e]; see Dimond v Verdon, 5 AD3d 718 [2d Dept 2004]). That branch of the motion by plaintiff to dismiss the tenth affirmative defense based upon lack of personal jurisdiction due to improper service of process asserted by defendant Marilyn Passaris is granted.

That branch of the motion by plaintiff for leave to amend the caption substituting "Jane" Passaris in place and stead of defendant "Jane Doe," and deleting reference to "John Doe" as a party defendant is granted.

It is ORDERED that the caption shall read as follows:

Plaintiff,

against-

Defendants.

It is well established that the proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). In a residential mortgage foreclosure action, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage and the unpaid note, and evidence of the default (see Midfirst Bank v Agho, 121 AD3d 343 [2d Dept 2014]). Where the plaintiff is not the original lender and standing is at issue, the plaintiff seeking summary judgment must also submit evidence that it received both the mortgage and note by a proper assignment, which can be established by the production of a written assignment of the note (see Aurora Loan Servs., LLC v Taylor, 114 AD3d 627 [2d Dept 2014]; see Homecomings Fin., LLC v Guldi, 108 AD3d 506 [2d Dept 2013]), or by physical delivery to the plaintiff of the note (see Kondaur Capital Corp. v McCary, 115 AD3d 649 [2d Dept 2014]; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 108 [2d Dept 2011]). Furthermore, a plaintiff must make a prima facie showing of proper service of the RPAPL 1304 notice containing the statutorily-mandated content as a condition precedent to the commencement of the foreclosure action (see Aurora Loan Services, LLC v Weisblum, 85 AD3d at 107). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

In support of its motion, plaintiff offers, among other things, a copy of the pleadings, the mortgage, the note, and a "corrective assignment of mortgage," the affirmation of its counsel, an affidavit of Victoria J. Greenwood, vice president of plaintiff, a copy of a "Docline Report," and [*2]a copy of a letter from plaintiff to defendant Marilyn Passaris dated September 10, 2012 and notice to admit dated December 12, 2013.

With respect to the issue of standing, the note bears a blank endorsement dated March 23, 1999 by Claudine M. Donnelly, as assistant vice-president of Roslyn, and without recourse. Ms. Greenwood states in her affidavit that plaintiff, as a mortgage servicer, collects payments and maintains up-to-date electronic records concerning the loans it services in its electronic record-keeping system. She also states that upon her review of plaintiff's business records related to the subject property and her personal knowledge of how those records are kept and maintained, "plaintiff, directly or through its agent," took possession of the original note on November 16, 2012 and was in possession of it at the time of the filing of the complaint on February 14, 2013. The note bears a blank endorsement dated March 23, 1999, by Claudine M. Donnelly, as assistant vice president of Roslyn, and is without recourse. Such evidence is sufficient to show, prima facie, plaintiff's standing to bring this action.

In opposition, defendant Marilyn Passaris asserts the corrective assignment ^[FN1] dated October 1, 2000 and acknowledged on May 4, 2001, providing for the assignment of both the subject mortgage and underlying note from Roslyn to Chase Manhattan Company, contradicts the claim by plaintiff that it was in actual physical possession of the note at the time of the commencement of the action. That the mortgage and note had been assigned to Chase Manhattan Company before plaintiff came into physical possession of the note, does not raise a triable issue of fact as to plaintiff's standing to bring this suit, since the note was endorsed in blank prior to the possession by plaintiff or its agent (see UCC § 3—204[2] ["(a) note payable to order and indorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially indorsed"]). A mortgage passes as an incident of the note upon the note's physical delivery to the plaintiff prior to commencement of the action (see PHH Mortg. Corp. v Israel, 120 AD3d 1329 [2d Dept 2014]; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931 [2d Dept 2013]). That branch of the motion by plaintiff to strike the affirmative defenses asserted by defendant Marilyn Passaris based upon lack of standing is granted.

With respect to the issue of compliance with RPAPL 1304, Ms. Greenwood states in her affidavit that a 90-day pre-foreclosure notice (annexed to the affidavit as Exhibit "E") was sent to defendant Marilyn Passaris at 67-44 Kessel Street, Forest Hills, New York, as defendant's last know address and address of the mortgaged premises by first-class and certified mail. The copy of the letter notice purportedly sent to defendant Marilyn Passaris and annexed to the Greenwood affidavit is insufficient to demonstrate compliance with RPAPL 1304, because it does not include the required attached list of five government approved housing counseling agencies that service [*3]the area where the borrower resides (see RPAPL 1304[2]). Ms. Greenwood additionally has failed to state when the mailings occurred (see CPLR 306).

Contrary to the assertion by plaintiff, the failure by defendant Marilyn Passaris to respond to its notice to admit cannot serve to prove that plaintiff strictly complied with RPAPL 1304. " The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial' " (Sagiv v Gamache, 26 AD3d 368, 369 [2d Dept 2006], quoting DeSilva v Rosenberg, 236 AD2d 508, 508 [2d Dept 1997]; see Orellana v City of New York, 203 AD2d 542 [2d Dept 1994]). Here, the notice to admit of plaintiff is palpably improper, insofar as it seeks the admission of the ultimate issue regarding plaintiff's compliance with RPAPL 1304 (see HSBC Bank USA, N.A. v Halls, 98 AD3d 718 [2d Dept 2012]).

Even assuming a notice to admit properly may be used to establish compliance with RPAPL 1304, plaintiff's notice calls for admission receipt of a document which is attached, but redacted (see Request No. 6). It would be improper for a party to admit receipt of a redacted document, unless the document received actually had been redacted. RPAPL 1304 requires a plaintiff in a foreclosure action to serve two copies of the 90-day notice, one by regular mail and the other by registered or certified mail, to the last known address of the borrower, and if different, to the residence that is the subject of the mortgage (RPAPL 1304[2]). Plaintiff's notice to admit simply calls for defendant Marilyn Passaris to admit that she received "a" copy of the 90-day notice attached as "Exhibit D" without regard to the manner or when the singular copy was delivered to her (see Request No. 6). Again, proper service of the RPAPL 1304 notice containing the statutorily-mandated content is a condition precedent to the commencement of the foreclosure action, and actual or constructive notice of the content of RPAPL 1304 does not suffice (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 103).

Nor can plaintiff rely upon the affidavit of Amir Cohkovic, a "Operations Senior Specialist" and the annexed exhibits, to establish compliance with RPAPL 1304, because they were submitted for the first time (after the motion was fully submitted) in its "supplemental" reply papers in support of its motion (see L'Aquila Realty, LLC v Jalyng Food Corp., 103 AD3d 692 [2d Dept 2013]; GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535, 535 [2d Dept 2006]; Voytek Tech. v Rapid Access Consulting, 279 AD2d 470, 471 [2d Dept 2001]).

Plaintiff's failure to make a prima facie showing of the absence of material issues as to plaintiff's compliance with RPAPL 1304 requires the denial of its motion for summary judgment, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). The branches of the motion by plaintiff for summary judgment as against defendant Marilyn Passaris, and for summary judgment dismissing the fourteenth affirmative defense asserted by defendant Marilyn Passaris based upon non-compliance with RPAPL 1304 are denied.

In view of the open question of whether plaintiff has strictly complied with RPAPL 1304, [*4]the branches of the motion by plaintiff to strike the remaining affirmative defenses asserted in the answer of defendant Marilyn Passaris, for leave to enter a default judgment against defendants New York City Environmental Control Board and "Jane" Passaris and for leave to appoint a referee, are denied at this juncture.

With respect to the branch of the motion by plaintiff for summary judgment dismissing the counterclaims asserted by defendant Marilyn Passaris, defendant Marilyn Passaris alleges for a first, second and third counterclaim, that plaintiff promised her a temporary modification of the mortgage loan and in reliance thereon, she sent an initial modification payment of $1950.00 for "February." She further alleges that plaintiff nevertheless commenced the foreclosure suit. Plaintiff, however, brought this action based upon a default in payment of the monthly mortgage installment due under the mortgage as of July 1, 2014. Defendant Marilyn Passaris has failed to allege or prove any writing sufficient to constitute a valid waiver of this default or to estop plaintiff from bringing this action (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 183 [1982], rearg denied 57 NY2d 674 [1982]).

Moreover, plaintiff offered defendant Marilyn Passaris a loan modification, and by letter dated May 14, 2013, advised her that she had to sign and return to it both copies of an attached modification agreement by May 25, 2013. When defendant Marilyn Passaris failed to do so, plaintiff denied her application for a loan modification because she "did not return the final modification agreement within the required time frame" (see letter dated September 30, 2013). Defendant Marilyn Passaris claims she was unable to accept the proposed modification because it called for payments in amounts which she could not afford due to the inclusion of escrow charges for "mistaken" water bills. She, however, has failed to demonstrate the water charges were not billed at the level which was included by plaintiff in the escrow amount, or that she successfully had challenged the charges and therefore the proposed escrow amount was improperly high. That branch of the motion by plaintiff for summary judgment dismissing the first, second and third counterclaims asserted by defendant Marilyn Passaris is granted.

The fourth counterclaim asserted by defendant Marilyn Passaris is based upon an alleged violation of the Federal Fair Debt Collection Practices Act (FDCPA) (see 15 USC § 1692 et seq.). She claims plaintiff wrongfully reported negative information to a credit reporting bureau at a time when plaintiff had failed to provided her, despite her demand, with a detailed breakdown of the exact amount owed to plaintiff. The FDCPA, however, does not generally apply to a creditor seeking to enforce a contract, such as a mortgage or note (see United Cos. Lending v Candela, 292 AD2d 800, 801—802 [2d Dept 2002], citing 15 USC § 1692a [6][F][iii]; see also Maguire v Citicorp Retail Servs., 147 F3d 232, 235 [2d Cir 1998]; Wadlington v Credit Acceptance, 76 F3d 103, 106 [6th Cir 1996]). In any event, plaintiff advised defendant Marilyn Passaris of the amount owed on her loan by letter dated November 27, 2012, and defendant Marilyn Passaris has failed to allege or prove when she made her demand or when the negative information was reported. That branch of the motion by plaintiff for summary judgment dismissing the fourth counterclaim is granted.

The fifth counterclaim asserted by defendant Marilyn Passaris fails to state a cause of action. To assert a viable claim under General Business Law § 349(a), a party must plead that (1) the challenged conduct was consumer-oriented, (2) the conduct or statement was materially misleading, and (3) [he or she sustained] damages' (Lum v New Century Mtge. Corp., 19 AD3d 558, 559 [2d Dept 2005]; see Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200, 205 [2004]; Stutman v Chemical Bank, 95 NY2d 24, 29 [2000]; Gaidon v Guardian Life Ins. Am., 94 NY2d 330, 344 [1999])" (Emigrant Mortg. Co., Inc. v Fitzpatrick, 95 AD3d 1169 [2d Dept 2012]). The loan documents herein fully set forth the terms of the subject mortgage loan and demonstrate that no deceptive act or practice occurred (see Patterson v Somerset Investors Corp., 96 AD3d 817 [2d Dept 2012]). Defendant Marilyn Passaris has failed to allege or offer evidence sufficient to establish a meritorious claim as to whether plaintiff's predecessor in interest made any materially misleading statements or committed any misconduct with respect to the subject loan (see Emigrant Mortg. Co., Inc. v Fitzpatrick, 95 AD3d at 1172). That branch of the motion by plaintiff for summary judgment dismissing the fifth counterclaim asserted by defendant Marilyn Passaris is granted.

With respect to the sixth counterclaim for reasonable attorneys' fees pursuant to Real Property Law § 282, Real Property Law § 282 provides that mortgage agreements affecting residential real property, which allow a prevailing lender to recover attorneys' fees and/or expenses in a foreclosure proceeding, will be read reciprocally to allow a prevailing borrower to recover attorneys' fees and/or expenses in an action to enforce a mortgagee's covenant or agreement, or upon prevailing in a defense or counterclaim in an action commenced by the mortgagee against the mortgagor. It is undisputed that the subject property is residential, but defendant Marilyn Passaris makes no claim that plaintiff failed to perform any covenant or agreement on its part to be performed under the mortgage. Thus, to the extent she seeks an award of reasonable attorneys' fees under Real Property Law § 282 for plaintiff's failure to perform a covenant or agreement on its part to be performed under the mortgage, she has failed to state a cause of action. To the extent, however, that she seeks an award of reasonable attorneys' fees in the successful defense of this action, the sixth counterclaim states a cause of action. The subject mortgage contains a covenant which provides that in a foreclosure action that the lender may recover costs and disbursements, including reasonable attorneys' fees incurred as the result of the failure of the mortgagor to perform any promise or agreement contained in the mortgage (see paragraph no. 21 of the mortgage) (see Katz v Miller, 120 AD3d 768 [2d Dept 2014]). That branch of the motion by plaintiff for summary judgment dismissing the sixth counterclaim is granted only to the extent of granting plaintiff summary judgment dismissing that portion of the sixth counterclaim which is premised upon a claim that plaintiff failed to perform a covenant or agreement on its part to be performed under the mortgage.

To the extent defendant Marilyn Passaris also asserts a claim seeking to "void" the subject mortgage on the ground that the disclosures of the credit terms and costs given to her by Roslyn were inadequate and thus violated the Truth in Lending Act [TILA] (15 USC § 1601 et seq.), the right to rescind under the TILA, including based upon the failure to provide a valid notice of the right to rescind (see 15 USC § 1635[f]; 12 CFR 226.23[a]), expires on the earlier of [*5](1) three years following the consummation of the transaction, or (2) the sale or transfer of the consumer's interest in the property (15 USC § 1635[f]; 12 CFR 226.23[a][3]). In this instance, the mortgage transaction was consummated in March 1999 (see 12 CFR 226.2[a][13]), more than three years prior to the interposition of the counterclaim. Furthermore, to state a cause of action based upon a violation of the TILA, a mortgagor must assert both the mortgagee's alleged TILA disclosure violation and that he or she can tender to the mortgagee the principal of the loan (see Berkeley Fed. Bank & Trust v Siegel, 247 AD2d 498 [2d Dept 1998]). Defendant Marilyn Passaris has failed to allege the manner in which the disclosures were inadequate, or that she can tender to plaintiff the principal of the loan. That branch of the motion by plaintiff for summary judgment dismissing the counterclaim asserted by defendant Marilyn Passaris based upon violation of the TILA is granted.

To the extent defendant Marilyn Passaris also asserts a claim seeking to void the subject mortgage based upon alleged violation of the Real Estate Settlement Procedures Act (RESPA), (12 USC § 2601 et seq.), for failure to provide a good faith estimate of closing costs prior to closing, and because the closing costs were excessive, it is time-barred since it was interposed well after the RESPA's statutes of limitations expired (see 12 USC § 2614 [one-year statute of limitations for violations pursuant 12 USC §§ 2607 and 2608] [three-year statute of limitations for violation of 12 USC § 2605]). That branch of the motion by plaintiff for summary judgment dismissing the counterclaim asserted by defendant Marilyn Passaris based upon violation of the RESPA is granted.

To the extent defendant Marilyn Passaris further claims the subject mortgage should be voided because plaintiff violated the Home Mortgage Disclosure Act (HMDA) (12 USC §§ 2801 et seq.), the Fair Housing Act (42 USC § 3605 et seq.) and the Equal Credit Opportunity Act (ECOA) (15 USC § 1691 et seq.), she has failed to allege or prove any facts in support of such claims (CPLR 3013). That branch of the motion by plaintiff for summary judgment dismissing the counterclaims asserted by defendant Marilyn Passaris based upon violations of the HMDA, Fair Housing Act and ECOA is granted.

Lastly, to the degree defendant Marilyn Passaris claims she is entitled to rescission of the mortgage loan because Banking Law §§ 6-l and 6-m were violated, section 6-l was enacted in 2002 and became effective on April 1, 2003 (see L 2002, c 626, § 4) and Banking Law § 6-m was enacted in 2008 and became effective on August 5, 2008 (see L 2008, c 472, § 5). Because the subject mortgage loan was originated in 1999, it does not fall under the purview of Banking Law §§ 6-l and 6-m (see Emigrant Mortg. Co., Inc. v Fitzpatrick, 95 AD3d 1169 [2d Dept 2012]). That branch of the motion by plaintiff for summary judgment dismissing the counterclaims asserted by defendant Marilyn Passaris based upon violations of Banking Law §§ 6-l and 6-m is granted.

March 19, 2015

______________________________

ROBERT J. McDONALD

J.S.C.