Upon the following papers numbered 1 to11read on this motion by plaintiff for summary judgment dismissing the affirmative defenses and counterclaims of the defendant borrowers and accelerated judgments on its complaint and cross motion by the borrowers defendants for summary judgment dismissing the complaint and other reliefNotices of motion and supporting papers1-3; Notice of cross motion and supporting papers4-6; Opposing papers;5; 6Reply papers7-8; Other 9 (memorandum); 10 (memorandum); 11 (memorandum); (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that the motion (#003) by the plaintiff for summary judgment dismissing the defendants' affirmative defenses and counterclaims, accelerated judgments on its complaint, the appointment of a referee to compute and other incidental relief is considered under CPLR 3212 and is granted; and it is further

ORDERED that the cross motion (#004) by the O'Donnell defendants for an order denying the plaintiff's motion and for summary judgment dismissing the plaintiff's complaint and an award of counsel fees is considered under CPLR 3212 and RPL § 282 and is denied.

The plaintiff commenced this action on August 5, 2013 and therein seeks to foreclose the lien of a mortgage given to the plaintiff by the O'Donnell defendants on March 4, 2008 to secure a mortgage note of the same date in favor of the plaintiff. The O'Donnell defendants appeared by answer dated September 14, 2013. Asserted therein are numerous affirmative defenses and three counterclaims.

By the instant motion (#003), the plaintiff moves for summary judgment dismissing the affirmative defenses and counterclaims set forth in the answer served by the answering defendants. They oppose the plaintiff's motion by the submission of cross moving papers in which they demand a denial of the plaintiff's motion and an award of summary judgment dismissing the plaintiff's complaint due to the plaintiff's purported lack of standing to prosecute this action as alleged in their First and Second affirmative defenses. The plaintiff opposes the cross motion in submissions which challenge the defendants' standing defenses as lacking in merit.

First considered is the cross motion (#004) by the answering defendants since the court's determination thereof may render the plaintiff's motion-in-chief, academic. As indicated above, the cross motion is singularly predicated upon the First and Second affirmative defenses asserted in the answer served by the O'Donnells in which they claim that the plaintiff lacks standing to prosecute its claims for foreclosure and sale because it was not the owner of the subject note and mortgage nor the holder thereof at the time of the commencement of the action. These claims are premised upon allegations that the Federal Home Loan Mortgage Corporation [hereinafter "Freddie Mac"] was the [*2]owner and holder of the note and mortgage as of April 14, 2008.

The defendants contend this key fact of note ownership was admitted by the plaintiff in the affidavit of its employee, Jessica McManus, which is attached to the plaintiff's moving papers. Ms. McManus therein states, in relevant part at ¶ 7, as follows: "Although BANA is the holder of record of the Note and Mortgage, the Federal Loan Mortgage Corporation ("Freddie Mac") has been the investor in the subject mortgage loan since April 21, 2008. As the investor, Freddie Mac has the beneficial interest in the amounts to be paid and/or recovered in connection with the Loan. Freddie Mac has authorized its loan servicer BANA to prosecute a foreclosure action in its own name in accordance with its published servicing guidelines".^[FN1]

In an effort to further establish that the plaintiff was not the owner or holder of the note at the commencement of this action, the O'Donnells rely upon a copy of a website printout allegedly authored by Freddie Mac in response to an inquiry from the defendants regarding whether Freddie Mac owns their mortgage (see Exhibit C attached to the affidavits of the O'Donnells in support of their cross motion). The printout recites that "Freddie Mac is the owner of your mortgage" and that "it was acquired on April 14, 2008." Defense counsel further offers as proof of Freddie Mac's ownership of the note certain excerpted portions of the Freddie Mac Guidelines. These are attached as Exhibit A to counsel's unaffirmed memorandum of law.^[FN2]

For the reasons stated below, the plaintiff's motion is granted while the defendants' cross motion is denied.

Recent appellate cases emanating from the Appellate Division, Second Department concerning the issue of the standing of a foreclosure plaintiff have held as follows: "Generally, [i]n residential mortgage foreclosure actions, as here, 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'" (internal citations omitted). However, "[w]here the plaintiff is not the original lender and standing is at issue, the plaintiff seeking summary judgment must also provide 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 or by physical delivery to the plaintiff of the mortgage and note" (US Bank Natl. Ass'n v Madero, 125 AD3d 757, 2015 WL 542170 [2d Dept 2015]; see Wells Fargo Bank, N.A. v Ali, 122 AD3d 726, 995 NYS2d 735 [2d Dept 2014]; Midfirst Bank v Agho, 121 AD3d 343, 991 NYS2d 623 [2d Dept 2014]). Delivery of the note to a custodial agent of the plaintiff will suffice to establish the standing of a foreclosing plaintiff under the foregoing rule (see Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013]; [*3]HSBC Bank USA, Natl. Ass'n v Sage, 112 AD3d 1126, 977 NYS2d 446 [3d Dept 2013]; Chase Home Fin., LLC v Miciotta, 101 AD3d 1307, 1307, 956 NYS2d 271 [3d Dept 2012]; Wells Fargo Bank, N.A. v Wine, 90 AD3d 1216, 1217, 935 NYS2d 664 [3d Dept 2011]).

In cases wherein the plaintiff is the original lender and its standing is challenged by the interposition of a due and timely standing defense, the plaintiff need not establish its ownership or holder status of the note and mortgage via a written assignment or physical delivery to it or to any of its custodial agents. Instead, the plaintiff need only establish that it alone, or in conjunction with a predecessor by merger or acquisition or a custodial agent, has maintained possession of the subject note and mortgage since the origination of the loan and that such possession continued through the commencement date of the foreclosure action (see PNC Bank, Natl. Ass'n v Klein, 125 AD3d 953, 2015 WL 774579 [2d Dept 2015]; Wells Fargo Bank, N.A. v Hudson, 98 AD3d 576, 949 NYS2d 703 [2d Dept 2012]; Suntrust Mtge. Inc. v Andriopoulos, 39 Misc 3d 1208[A], 971 NYS2d 75 [Sup. Ct. Suffolk County 2013]).

In a very recent appellate decision issued in a case factually similar to the instant one, the Appellate Division, Third Department held that where a note was originated by the plaintiff and endorsed by it in blank, the plaintiff's sale of beneficial interests in the note to Freddie Mac prior to the commencement of foreclosure action does not deprive the original lender/plaintiff of its right to enforce

Holder status is established where the plaintiff possesses a note that, on its face or by allonge, contains an indorsement in blank or bears a special indorsement payable to the order of the plaintiff (see UCC 1—201 [former (20) ]; 3—202; 3—204; Hartford Acc. & Indem. Co. v American Express Co., 74 NY2d 153, 159 [1989]; DH Cattle Holdings Co. v Smith, 195 AD2d 202, 208 [1994]; see also Nationstar Mtge., LLC v. Davidson, 116 AD3d 1294, 1296 [2014], lv denied 24 NY3d 905 [2014]; Deutsche Bank Trust Co. Ams. v Codio, 94 AD3d 1040, 1041 [2012]; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 674 [2007] ). Notably, "[t]he holder of an instrument whether or not he [or she] is the owner may transfer or negotiate it [and] discharge it or enforce payment in his [or her] own name" (UCC 3—301 [emphasis added]; see generally Glens Falls Indem. Co. v Chase Natl. Bank, 257 NY 441, 445 [1931]; Gates v Manufacturers Hanover Trust Co./Capital Region, 98 AD2d 829, 829 [1983], abrogated on other grounds Golden v Citibank, N.A., 23 NY3d 935, 936 [2014] ). Here, the note was originated by plaintiff and a copy submitted on the motion, alleged to be in plaintiff's possession at the time it commenced this action, is endorsed in blank. Thus, notwithstanding the sale of the beneficial interests of the note to Freddie Mac, plaintiff has the right to enforce the note as its lawful holder so long as it can prove that it physically possessed the note at the time the action was commenced.

Notwithstanding the foregoing case pronouncements which impose, seemingly [*4]unconditionally, note ownership or holder status upon foreclosing plaintiffs as a requisite to establishing their standing to foreclose, the legislature has recently conferred standing upon non-owner and non-holder mortgage loan servicers by statute. RPAPL § 1302 provides that in certain foreclosure actions, the complaint must state that the plaintiff "is the owner and holder of the subject mortgage and note or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject mortgage an note". [emphasis added]. RPAPL § 1304, which mandates the issuance of certain notices to the borrower, goes on to provide that such notice must be served "before a lender or a mortgage loan servicer commences legal action against a borrower, including mortgage foreclosure" [emphasis added].

Here, the defendants' cross motion for summary judgment on their standing defenses is singularly premised upon claims that Freddie Mac was the owner of the mortgage and the transferee of beneficial interests in the note as of April 21, 2008, some five years, 4 months prior to the commencement of this action. By reason of the foregoing, the defendants conclude that the plaintiff lacks standing to prosecute its claims for foreclosure and sale.

The court, however, rejects the defendants' claims that their submissions establish a lack of standing on the part of the plaintiff. The proof relied upon does not support the defendants' conclusion that ownership of the note and mortgage on the date this action was commenced was vested in Freddie Mac. The proof adduced in the record only demonstrates that beneficial interests in the note were transferred by the plaintiff to Freddie Mac in April of 2008.

Even if it were otherwise, the plaintiff's transfer of such beneficial interests in the note to Freddie Mac well before the commencement of this action does not, in and of itself, deprive the plaintiff of holder status to enforce the note, provided that the plaintiff had possession of the note on the date of commencement (see Wells Fargo Bank, NA v Ostiguy, ___ AD3d ___, 2015 WL 1565673 [3d Dept 2015], supra). To prevail on their cross motion or to defeat the plaintiff's motion for summary judgment, the defendants were thus required to adduce some proof of a lack of possession of the note on the part of the plaintiff in addition to its pre-action transfer of beneficial interests to Freddie Mac (id). Upon its review of the defendants' submissions, the court finds that they were insufficient to establish any such lack of possession by proof in admissible form

A review of the record adduced here reflects the existence of due proof in admissible form of the following facts: that the plaintiff was the original lender and that it advanced the mortgage loan monies to the defendants on March 4, 2008 under the terms of a promissory note executed on that date which was secured by a mortgage of the same date; that the plaintiff's subsidiary, BAC Home Loan Servicing, L.P., was the servicer of the loan and that the plaintiff became the servicer on July 1, 2011 after BAC merged into the plaintiff. The record also reflects that while the plaintiff transferred beneficial interests in the note to Freddie Mac in April of 2008, the plaintiff, as the original lender and the direct servicer when this action was commenced, had continuous possession of the note it originated and endorsed in blank, through its custodial agent, Recon Trust Company, N.A., a subsidiary of the plaintiff, and that actual possession was restored to the plaintiff on July 23, 2013, some fifteen days prior to its commencement on August 5, 2013. Finally, the record reflects [*5]that the plaintiff, in its capacity as servicer, was authorized by Freddie Mac to commence this foreclosure action.

The defendants' reliance upon the Freddie Mac website page response to their inquiry as to who owns their mortgage is unavailing since the plaintiff's 2008 transfer of beneficial interests in the note did not terminate the plaintiff's holder status nor preclude the plaintiff's commencement of this action in its capacity of servicer of the loan under authority from Freddie Mac. The defendants' reliance upon the Freddie Mac Guidelines is likewise unavailing.

The defendants' cross motion (#004), including their demand for recovery of counsel fees under RPL § 282, is thus denied in its entirety. The proposed order submitted by the defendants on their cross motion has been marked not signed.

The plaintiff's motion-in chief (#003), which is largely unopposed, is granted. Entitlement to a judgment of foreclosure is generally established as a matter of law where a mortgagee produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact" (Zanfini v Chandler, 79 AD3d 1031, 912 NYS2d 911 [2d Dept 2010], quoting HSBC Bank USA v Merrill, 37 AD3d 899, 900, 830 NYS2d 598 [2d Dept 2010]; see Plaza Equities, LLC v Lamberti, 118 AD3d 688, 986 NYS2d 843 [2d Dept 2014]; Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895, 964 NYS2d 548 [2d Dept 2013]; Solomon v Burden, 104 AD3d 839, 961 NYS2d 535 [2d Dept 2013]). This standard is enlarged to include a demonstration that the plaintiff is possessed of the requisite standing to pursue its claims where, and only where, the defense of standing is due and timely asserted by a defendant possessed of such defense (see Plaza Equities, LLC v Lamberti, 118 AD3d 688, supra; Peak Fin. Partners, Inc. v Brook, 119 AD3d 539, 987 NYS2d 916 [2d Dept 2014]; Kondaur Capital Corp. v McCary, 115 AD3d 649, 981 NYS2d 547 [2d Dept 2014]; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Rivas, 95 AD3d 1061, 945 NYS2d 328 [2d Dept 2012]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007]).

Here, the plaintiff's moving papers established, prima facie, its entitlement to the summary judgment demanded by it by its production of both the mortgage and unpaid note, together with evidence of a default in payment on the part of the O'Donnell defendants. In addition, the plaintiff established, prima facie, its standing to prosecute this action. Due proof was adduced that the plaintiff was the original lender and that its subsidiary, BAC Home Loan Servicing, L.P., was the servicer and that the plaintiff became the servicer on July 1, 2011 after BAC merged into the plaintiff. Notwithstanding its transfer of beneficial interests in the note to Freddie Mac in April of 2008, the plaintiff, as the original lender and the direct servicer when this action was commenced, had constructive possession of the note endorsed in blank through its custodial agent, Recon Trust Company, N.A., a subsidiary of the plaintiff (see Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013]; supra; HSBC Bank USA, Natl. Ass'n v Sage, 112 AD3d 1126, 977 NYS2d 446 [3d Dept 2013], supra; Chase Home Fin., LLC v Miciotta, 101 AD3d 1307, [*6]1307, 956 NYS2d 271 [3d Dept 2012], supra; Wells Fargo Bank, N.A. v Wine, 90 AD3d 1216, 1217, 935 NYS2d 664 [3d Dept 2011], supra). In addition, the record contains due proof that the plaintiff, as the loan servicer, reclaimed actual possession of the endorsed note from its custodial agent as of July 23, 2013, some fifteen days prior to its commencement on August 5, 2013 and was duly authorized by Freddie Mac to commence this foreclosure action.

The plaintiff's moving papers further established that none of the affirmative defenses and none of the counterclaims set forth in the answer of the O'Donnells have merit. No questions of fact were raised by the defendants with respect to the standing affirmative defenses asserted in opposition to the plaintiff's motion for the reasons advanced above. Nor were any questions of fact raised by the defendants with respect to any of their other affirmative defenses and counterclaims as their opposition was limited to the standing defenses (see Nationstar Mtge. LLC v Silveri, 126 AD3d 864, 2015 WL 1212321 [2d Dept 2015]; Flagstar Bank v Bellafiore, 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012]). The court thus finds that the plaintiff is entitled to summary judgment on its complaint and to the dismissal of the affirmative defenses and counterclaims set forth in the joint answer of the O'Donnell defendants. Those portions of this motion wherein the plaintiff seeks such relief are thus granted.

Those portions of the plaintiff's motion wherein it seeks an order dropping as party defendants the unknown defendants listed in the caption and an amendment of the caption to reflect same are granted.

The moving papers further established the default in answering on the part of the corporate defendants listed in the caption, neither of whom served answers to the plaintiff's complaint. Accordingly, the defaults of all such defendants are hereby fixed and determined. Since the plaintiff has been awarded summary judgment against the answering defendants and has established a default in answering by the remaining defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see RPAPL § 1321; Bank of East Asia, Ltd. v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]; Vermont Fed. Bank v Chase, 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; LaSalle Bank, NA v Pace, 31 Misc 3d 627, 919 NYS2d 794 [Sup. Ct. Suffolk County 2011], aff'd, 100 AD3d 970, 955 NYS2d 161 [2d Dept 2012]).

The court is unaware of the plaintiff's submission of a proposed order of reference providing for the appointment of a referee to compute pursuant to RPAPL § 1321. The plaintiff is thus directed to settle such an order, upon a copy of this order, to the undersigned. Such order shall provide in blank for the court's nomination of a referee to compute and shall also contain all of the particulars required by RPAPL § 1321 and the Rules at 22 NYCRR Part 36 and such others in effect in this court.