Upon the following numbered papers numbered 1 through 10 read on this motion by plaintiff for summary judgment as against defendants Tzivya C. Kopelowitz a/k/a Tzivya C. Lieber and David Kopelowitz, to strike the answer of defendants Tzivya Kopelowitz and David Kopelowitz and deem it an appearance and waiver, for leave to enter a default judgment as against those non-answering and non-appearing defendants, for leave to appoint a referee to [*2]compute the sums due and owing plaintiff, and for leave to amend the caption to delete reference to the "John Doe" and "Jane Doe" defendants:

Papers

Numbered

Notice of Motion - Affidavits - Exhibits .............................................1-4

Answering Affidavits - Exhibits .........................................................5-7

Reply Affidavits ..................................................................................8 -10

The motion is determined as follows:

Plaintiff commenced this action on August 20, 2008 to foreclose a mortgage, encumbering the real property known as 125 Beach 3rd Street, Far Rockaway, New York, given by defendants Tzivya C. Kopelowitz and defendant Kopelowitz, as security for the payment of a note, evidencing a loan in the principal amount of $495,000.00 plus interest from Fairmont Funding Ltd. In the complaint, plaintiff alleges that it is the assignee of the note and mortgage, and defendants Kopelowitz defaulted in paying the mortgage installment due on March 1, 2008 and thereafter, and as a consequence, plaintiff elected to declare the entire mortgage debt to be due and owing.

Defendants Tzivya C. Kopelowitz and defendant David Kopelowitz served a joint answer, asserting an affirmative defense based upon lack of jurisdiction due to defective service of process. Plaintiff caused defendants Washington Mutual Bank, FA, New York State Department of Taxation and Finance, United States of America Internal Revenue Service, New York City Transit Adjudication Bureau, New York City Environmental Control Board and New York City Parking Violations Bureau to be served with process and these defendants are in default in appearing or answering the complaint. Plaintiff did not cause defendants "John Doe" and "Jane Doe" to be served with process.

A residential foreclosure conference was held on March 10, 2014. By order of the same date, the Court Attorney Referee, granted plaintiff leave to proceed with the action, noting the case had not settled, and directed plaintiff to appear at a status conference on September 11, 2014 and file an application for an order of reference by that conference date. By order dated September 11, 2014, the Court Attorney Referee directed plaintiff to appear at a final status conference to be held on May 19, 2015, and file an application for an order of refence by that final status conference date. Plaintiff made the instant motion on September 12, 2014.

Defendants Kopelowitz oppose the motion. They assert the branch of the motion by plaintiff for summary judgment against them is premature because plaintiff failed to respond to their notice for discovery and inspection dated November 12, 2008, and in any event, plaintiff lacked standing to commence the action, they reached an accord and satisfaction with Chase Manhattan Bank and as a consequence the action cannot be maintained by plaintiff. The other defendants have not appeared in relation to the motion.

That branch of the motion for leave to amend the caption ^[FN1] deleting reference to the "John Doe" and "Jane Doe" defendants is denied without prejudice to renewal based upon proper papers. Although these defendants have not been served, plaintiff has failed to show they have not been identified as tenants or occupants of the mortgaged premises (see Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225 [2d Dept 2014]; Flagstar Bank v Bellafiore, 94 AD3d 1044, 1046 [2d Dept 2012]; Neighborhood Housing Services of New York City, Inc. v Meltzer, 67 AD3d 872, 874 [2d Dept 2009]). Therefore, plaintiff has not made any showing that these defendants are not necessary party 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]). In support of its motion, plaintiff offers, among other things, a copy of the pleadings, the mortgage and the note, the affirmation of its counsel, and an affidavit of a Phonesay Say, a vice president of JPMorgan Chase Bank, N.A., the loan servicer for plaintiff.

By these submissions, plaintiff has established a prima facie case of entitlement to summary judgment against defendants Kopelowitz as a matter of law (see EMC Mortgage Corp. v Riverdale Associates, 291 AD2d 370 [2d Dept 2002]; Republic Natl. Bank of NY v Zito, 280 AD2d 657, 658 [2d Dept 2001]). The burden shifts to defendants Kopelowitz to lay bare their proof in opposition to plaintiff's prima facie showing, or to demonstrate the existence of a defense warranting the denial of summary judgment (see Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067—1068 [1979]).

To the extent defendants Kopelowitz asserted "lack of jurisdiction," the Supreme Court is a court of original, unlimited and unqualified jurisdiction (see Kagen v Kagen, 21 NY2d 532, 537 [1968]; NY Const., art VI, § 7) and is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166 [1967]). The court has the competence to adjudicate the claim asserted by plaintiff for the foreclosure of the mortgage. To the extent defendants Kopelowitz assert lack of personal jurisdiction due to improper service of process, they failed to move to dismiss the complaint [*3]upon such ground within 60 days of service of a copy of their answer, and have made no application to extend the period of time upon the ground of undue hardship (CPLR 3211[e]). Such defense is deemed waived (CPLR 3211[e]; see Dimond v Verdon, 5 AD3d 718 [2d Dept 2004]).

To the extent defendants Kopelowitz assert plaintiff lacked standing to commence this action, they have waived such defense insofar as they failed to interpose the defense in their answer or to file a timely pre-answer motion raising that defense (see HSBC Bank USA, NA v Schwartz, 88 AD3d 961 [2d Dept 2011]; U.S. Bank N.A. v Eaddy, 79 AD3d 1022 [2d Dept 2010]; Wells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817, 817—818 [2d Dept 2010], cert denied 131 S Ct 648, 178 L Ed 2d 480; cf. Aurora Loan Services, LLC v Thomas, 70 AD3d 986 [2d Dept 2010]).

Defendants Kopelowitz assert that plaintiff has improperly joined defendant Washington Mutual Bank, FA as a party defendant because Citigroup, as trustee for WAMU 2003-S11, is the named plaintiff. According to defendants Kopelowitz, it consequently is a conflict of interest for counsel for plaintiff to represent plaintiff herein.

Plaintiff, in its complaint, alleges that defendant Washington Mutual Bank, FA is the holder of a claim or lien against the mortgaged premises which is subject, or subordinate, to the subject mortgage. RPAPL 1311 provides that a necessary defendant is one "whose interest is claimed to be subject and subordinate to the plaintiff's lien." RPAPL 1311(3) requires that "[e]very person having any lien or incumbrance upon the real property which is claimed to be subject and subordinate to the lien of the plaintiff" be made a party. Parties are named in a foreclosure action to extinguish the rights of redemption they possess as subordinate lienholders and to vest complete title in the purchaser at the judicial sale (see RPAPL 1311; Polish National Alliance v White Eagle Hall Co., 98 AD2d 400 [2d Dept 1983]). Defendants Kopelowitz have made no showing defendant Washington Mutual Bank, FA is not a necessary party defendant (RPAPL 1311), or that the trust, WAMU 2003-S11, for which plaintiff serves as trustee, is the same entity as defendant Washington Mutual Bank, FA. Nor have they shown that it is a conflict of interest for counsel for plaintiff to represent plaintiff herein.

Defendants Kopelowitz assert they reached an accord and satisfaction relative to the subject mortgage. They claim that in 2009, during the pendency of this action, they entered into a trial period plan (TPP) agreement with Chase Manhattan Bank (Chase), as the then assignee of the subject mortgage loan, in accordance with the federal Home Affordable Modification Program (HAMP), pursuant to which they were to remit $2507.41, a reduced monthly payment for a period of three months. Defendants Kopelowitz claim Chase accepted their reduced payments in the amount of $2507.41 for a period of 10 months, prior to rejecting their check, in the same amount, as insufficient. Defendants Kopelowitz assert that they should be permitted to resume payments in the amount of $2507.41 per month.

Defendants Kopelowitz have failed to demonstrate that an accord and satisfaction was [*4]reached between them and plaintiff (see Charter One Bank, FSB v Leone, 45 AD3d 958 [3d Dept 2007]). A party seeking to establish an accord and satisfaction must demonstrate that there was a disputed or unliquidated claim between the parties which they mutually resolved through a new contract discharging all or part of their obligations under the original contract (see Pothos v Arverne Houses, 269 AD2d 377 [2d Dept 2000]). The copy of the TPP submitted to the court by defendants Kopelowitz is insufficient to demonstrate an accord and satisfaction, or a modification of the subject mortgage loan. The copy is incomplete insofar as it recites that it is three pages in length, but only the first two pages have been presented. In addition, that portion of the copy which is submitted contains an acknowledgment by the borrowers that the TPP does not constitute a modification of the loan documents, and such a modification requires, among other things, a fully executed loan modification agreement. Defendants Kopelowitz have failed to demonstrate that any such executed loan modification agreement was entered into by them with plaintiff, or its agent or predecessor in interest. Defendants Kopelowitz also make no claim they informed the Court Attorney Referee during the residential foreclosure conference that a permanent loan modification had been achieved. It is significant the Court Attorney Referee noted in his order dated March 10, 2014 that defendants/borrowers "intend[ed] to pursue other options" (emphasis supplied).

Defendants Kopelowitz have failed to come forward with any evidence showing the existence of a triable issue of fact with respect to any defense. Defendants Kopelowitz additionally have failed to show that facts essential to justify opposition to that branch of the motion for summary judgment may emerge upon discovery. Plaintiff, therefore, is entitled to summary judgment in its favor against defendants Kopelowitz (see Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624 [2d Dept 2009]; Cochran Inv. Co., Inc. v Jackson, 38 AD3d 704 [2d Dept 2007]). Accordingly, it is

ORDERED that the branch of the motion by plaintiff for summary judgment as against defendants Kopelowitz is granted; and it is further

ORDERED that the branches of the motion by plaintiff for leave to enter a default judgment against the non-appearing or non-answering defendants and to appoint a referee are denied without prejudice since plaintiff has failed to demonstrate that defendants "John Does" and "Jane Does" have been joined as necessary party defendants (RPAPL 1321).