Upon the following papers read on this motion by plaintiff for summary judgment establishing defendant Ika Campbell's default in payment, dismissing defendant's second and third affirmative defenses and appointment of a referee pursuant to RPAPL § 1321; it is,

ORDERED that plaintiff CV XXVIII's motion for summary judgment dismissing defendant Ika Campbell's second and third affirmative defenses, establishing her default in payment under the note and mortgage, striking her answer and for appointment of a referee pursuant to RPAPL § 1321 is denied; and it is further

ORDERED that this action is scheduled for limited issue trial in accordance with this order on Tuesday, November 28, 2017 at 9:30AM in Part 27, Supreme Court, Suffolk County, courtroom 17, Cromarty Court Complex, 210 Center Drive, Riverhead, NY.

This is an action to foreclose a mortgage on residential real property known as 2 Arborvitae Lane, Miller Place, Suffolk County, New York ("the property") given by defendants-mortgagors Hubert Campbell and Ika Campbell ("mortgagors") to Mortgage Electronic Registration Systems, Inc. ("MERS") [*2]acting solely as nominee for the original lender, Fremont Investment & Loan ("Fremont"), plaintiff CV XXVIII 's ("plaintiff") purported predecessor in interest. Mortgagors executed the mortgage to secure a note given at the same time to Fremont. Only defendant Ika Campbell ("defendant") filed an answer, as co-mortgagor Hubert Campbell died, and as they were husband and wife, title to the property passed solely to her.

Plaintiff previously moved (Mot. Seq. # 001) for summary judgment seeking dismissal of defendant's answer, appointment of a referee pursuant to RPAPL § 1321, fixing the default of the non-appearing, non-answering defendants and amending the caption. After oral argument on December 15, 2016, the court issued a decision on the record granting plaintiff partial summary judgment. The history of this case and the basis for the court's decision are contained in that decision. In granting partial summary judgment, the court fixed and set the default of the non-answering, non-appearing defendants, amended the caption and dismissed all of defendant's affirmative defenses except her second affirmative defense (plaintiff's lack of standing to bring the action) and third affirmative defense (failure to establish compliance with the mailing requirements of RPAPL § 1304), as well as denied summary judgment as plaintiff had not established the default in payment of defendant upon that record. As questions of fact remained as to those issues, the court set the action for a limited issue trial pursuant to CPLR § 2218 on those issues, issuing a written discovery and scheduling order, which authorized discovery limited to those issues.

That order also authorized the submission of further summary judgment motions by the parties upon the completion of discovery, within thirty day of filing of a note of issue. The note of issue was filed on May 30, 2017 and plaintiff's present motion was timely filed.

In determining this motion the court has considered the submissions in support of plaintiff's motion its attorney's affirmations, two affidavits of David Haddod as a purported officer of plaintiff, and attached exhibits, which appear to include plaintiff's submissions in support of Mot. #001 (Exhibit "A") which includes affirmations of plaintiff's then counsel, an affidavit of Mr. Haddod as a purported officer of plaintiff's then servicer Longvue Mortgage Capital, Inc. ("Longvue") and the exhibits submitted at that time; defendant's opposition consisting of an affirmation of counsel and attached exhibits; and plaintiff's reply consisting of an affirmation of plaintiff's counsel.

Plaintiff's motion is denied. Plaintiff's submissions again fail to provide admissible proof in evidentiary form of defendant's default in payment, standing to bring the action and compliance with the mailing requirements of the notices mandated by RPAPL § 1304.

Entitlement to summary judgment in favor of a foreclosing plaintiff is established, prima facie, by plaintiff's production of the mortgage and the unpaid note, and evidence of the default in payment (see Wells Fargo Bank, N.A. v. DeSouza, 126 AD3d 965 [2d Dept 2015]; Wells Fargo, NA v Erobobo, 127 AD3d 1176 [2d Dept 2015]; Wells Fargo Bank, NA v Morgan, 139 AD3d 1046 [2d Dept 2016]). If plaintiff has established that by proof submitted in evidentiary form, it has demonstrated its entitlement to summary judgment (CPLR 3212; RPAPL § 1321; see, Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [2d Dept 1997]).

Where plaintiff's standing has been placed in issue by defendant's answer, as here, plaintiff also must establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355 [2015]; Loancare v. Firshing, 130 AD3d 787 [2d Dept 2015]; US Bank,, NA v Richard, 151 AD3d 1001 [2d Dept 2017]).

Plaintiff establishes its standing by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor, supra; Wells [*3]Fargo Bank, NA v Rooney, 132 AD3d 980 [2d Dept 2015]). A written assignment or physical delivery prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident thereto (see U.S. Bank, NA v Collymore, 68 AD3d 752 [2d Dept 2009]; Bank of NY Mellon v Gales, 116 AD3d 723 [2d Dept 2014]).

In addition, where defendant has properly asserted non-compliance with the notice requirements of RPAPL §1304 as a defense, as here, plaintiff must adduce due proof that the pre-action foreclosure 90 day notice requirements have been satisfied (see Bank of New York v. Aquino, 131 AD3d 1186 [2d Dept 2015]; Cenlar FSB v. Weisz, 136 AD3d 855 [2d Dept 2016]; JPMorgan Chase Bank v. Kutch, 142 AD3 536 [2d Dept 2016]; Aurora Loan Svcs, LLC v Baritz, 144 AD3d 618 [2d Dept 2016]; U.S. Bank, N. A, v Singh, 147 AD3d 1007 [2d Dept 2017]).

The court's task in deciding the motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (see Vega v Restani Corp., 18 NY3d 499 [2012]).

Summary judgment is in some ways similar to a jigsaw puzzle; the movant must put the pieces together, through evidentiary proof in admissible form, showing his/her entitlement to judgment. Sometimes, where sufficient proof is brought forth in admissible form, but the movant has trouble placing the puzzle parts together, the court can look at what is presented, search the record, see how they fit, and then put the puzzle together. But when a movant just throws the pieces on the table and it is apparent that the pieces don't fit together, or that some are from a different puzzle, the court cannot "re-cut" or "hammer" the pieces into a misshaped picture for the movant.

Plaintiff relies upon the two affidavits of Mr. Haddod submitted with this motion to establish defendant's default, its standing to bring the action and the mailing of the notices required by RPAPL § 1304. The two affidavits from Mr. Haddod submitted in support of this motion appear to make reference to, and appear in part to rely upon, the submissions on Mot #001 attached to this motion as Exhibit "A". This is because these two affidavits make reference to "exhibits" and documents as if they were attached to his affidavits, yet there are no exhibits or documents attached to his affidavits. The court is left to guess that he must be referring to information contained in Exhibit "A" on the motion, though the affidavits never specifically say that.

His affidavit entitled "Affidavit of Physical Possession" refers to a "Note with corresponding allonges annexed hereto as Exhibit 'A'" (see par. 6). There is no "Exhibit" attached to his affidavit. In paragraph 8 of his affidavit, Mr. Haddod again refers to "all corresponding Allonges as affixed thereto." Paragraph 9 states "I have reviewed the original Note, with all corresponding Allonges as affixed to the Note, and I can attest that the copy attached hereto is a true and accurate copy." There is no note or "allonges" attached to his affidavit.

As there is no Exhibit "A", or anything else attached to his affidavit, is the court to guess that he is referring to Exhibit "A" on this motion, which is all of plaintiff's original Mot # 001 submissions? If the court granted plaintiff the benefit of the doubt, it could guess that Mr. Haddod is referring to the copy of the note which was marked as Exhibit "A" in Mot. #001 (see Exhibit "A" on this motion - Mot # 001 - Exhibit "A"). Yet it is the burden of plaintiff to establish its proof not just in evidentially admissible form, but in a form that is decipherable without the court having to make suppositions to aid plaintiff. What may be politely called "imprecision" could have been clarified in reply, if the basic facts had been provided on the original submission. Here there is no attempt to clarify, and the court cannot assist plaintiff, as there are more "imprecise" statements than just these in both of Mr. Haddod's affidavits submitted in support of this motion.

In any event, the court reviewed Exhibit "A" submitted in Motion #001. There are no "corresponding allonges" therein, at best there could be one allonge, which in fact does not appear to be a [*4]true allonge. The court has often been seen allonges, and they usually contain language indicating their status. What was presented in plaintiff's unsuccessful Mot #001 is more likely an endorsement placed on the back page of the original note.

In his "Affidavit of Physical Possession," Mr. Haddod appears to establish his ability to testify to plaintiff's business records pursuant to CPLR 4518 (a), if he in fact is an officer or employee of plaintiff. If his position with plaintiff was established, and if he had stated in this affidavit that his review of those records had revealed that this page was in fact not a separate page, but an endorsement on the back page of the note, the court may have accepted that as proof of plaintiff's standing to prosecute the action (see Aurora Loan Services, LLC v Taylor, supra; Wells Fargo Bank, N.A. v Gallagher; 137 AD3d 898 [2d Dept 2016]; Flagstar Bank v Mendoza, 139 AD3d 898 [2d Dept 2016]; Citimortgage v Klein, 140 AD3d 913 [2d Dept 2016]). Yet, since he claims in his this affidavit that non-existing "corresponding allonges" exist and the note is attached to them, the court cannot make this unsupported leap to assist plaintiff to make its insufficiently drafted affidavit sufficient.

Further there are additional questions as to what he was referring to in this affidavit, and the authenticity of his position as an officer of plaintiff, which would prevent him from establishing the records pursuant to CPLR 4518 (a).

Although referred to by plaintiff's counsel in reply as "red herrings," defendant's counsel's opposition raises significant questions about the veracity of both of Mr. Haddod's affidavits submitted in support of this motion. First, the totality of the submissions by plaintiff, including Exhibit "A," raise questions as to Mr. Haddod's position as an officer or employee of plaintiff. The fact that Mr. Haddod executed the affidavit in Mot #001 as an "E.V. P." of plaintiff's servicer Longvue (see Exhibit "A" on this motion -Mot#001 - at page marked as "page 18 of 22"), and executed both affidavits submitted on this motion as an "Evp" of plaintiff raise questions concerning his veracity. A person could hold both positions, but in an industry which has been plagued by "robo-signing," it is to be expected that such a fact would be explained instead of just being left to speculation. Plaintiff's submissions fail to address this issue, although it could have been done in reply once the issue was raised in opposition.

The next is the "canned" nature of both affidavits submitted in support of this motion. The court's review of both this affidavit and Mr. Haddod's second affidavit, entitled "Affidavit of Mailing," causes the court to agree with defendant's counsel's conclusion that the affidavits appear to be form/canned affidavits. They both contain a few "blanks" to be filled in by hand, but also contain other "form"statements that are not relevant to this case, including the continued reference in this affidavit to "allonges" in the plural. There are more "irrelevant" form statements in the second affidavit relating to the mailings that will be discussed below in reference to proof of mailing and also reflect upon the sufficiency and veracity of both affidavits.

Form affidavits are common and fine tools of lawyering, as long as they are modified to fit the facts of the case. Here they seem to be used to shoe horn the facts into a shoe that does not fit.

Additionally, as there are so many deficiencies with plaintiff's submitted affidavits, the court addresses the issue of exactly what "E. V. P." means. The next time Mr. Haddod provides an affidavit as an "E.V.P.," he at least should explain somewhere in the document what that means and what position he actually holds. The court guesses it means "Executive Vice President," but it could mean something else. The court would not have denied the motion if this was the only deficiency, as it could conclude he was an officer of some form, but an explanation would have been appropriate.

These deficiencies in this affidavit of Mr. Haddod raise questions of fact as to his ability to provide such an affidavit, and his ability to establish through it evidentiary proof in admissible form that plaintiff had standing to bring this action.

Plaintiff's proof of standing in Mot. Seq. #001 was found by the court's decision and order of December 15, 2016 to be insufficient. Plaintiff's Exhibit "A" on this motion (see Exhibit "A" on this motion - Mot#001 - Exhibit"B") includes plaintiff's original submissions of the series of mortgage assignments filed with the Suffolk County Clerk ending with an assignment to plaintiff. This is still insufficient to establish plaintiff's standing. The original mortgage was given by defendant-mortgagors to MERS acting solely as nominee for Fremont for the [*5]purpose of recording the mortgage. The purported assignment of the note and mortgage from MERS to others in the chain of mortgages ending in an assignment to plaintiff, at best transferred only the mortgage, as plaintiff provides no proof of the authority of MERS to assign the note and thus fails to demonstrate that the note was assigned at that time (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2d Dept 2007]; Bank of New York v Silverberg, 86 AD3d 274 [2d Dept 2011]), US Bank, N.A. v Faruque, 120 AD3d 575 [2d Dept 2014]; (Aurora Loan Servs., LLC v Baritz, 144 AD3d 618 [2d Dept 2016]).

As there remain questions of fact as to plaintiff's proof of its standing upon this record, defendant's second affirmative defense cannot be dismissed (see Deutsche Bank National Trust Co v Weiss, 133 AD3d 704 [2d Dept 2015]; HSBC Bank USA, National Association v Gilbert, 120 AD3d 756 [2d Dept, 2014]; Bank of NY Mellon v Gales,116 AD3d 723 [2d Dept 2014]; Deutsche Bank Trust Co. v Idarecis, 133 AD3d 702 [2d Dept 2015]).

The second affidavit of Mr. Haddod, entitled "Affidavit of Mailing," is insufficient to establish proof of mailing of the notices required by RPAPL § 1304. As with his other affidavit, he does start by purportedly establishing his ability to testify as to the records of plaintiff pursuant to CPLR 4518(a). He then attempts to establish the practices and procedures of plaintiff for mailing of notices to show a standard office practice or procedure for mailing designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]); Vivane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498 [2015]; CitiMortgage, Inc v Pappas, 147 AD3d 900 [2d Dept 2017]; Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017]; Wells Fargo Bank, NA v Trupia, 150 AD3d 1049 [2d Dept 2017]; Investors Savings Bank v Salas, 152 AD3d 752 [2d Dept 2017]; One West Bank, FSB v Simpson, 148 AD3d 920 [2d Dept 2107]), but it falls apart.

In paragraph 8 he states that the mail is "physically delivered by a member of Bayview(emphasis added) to the United States Postal Service." He continues to relate the mailing procedure and records of "Bayview" in paragraph 9. There is no attempt to explain who or what "Bayview" is, or how it is related to plaintiff or this mailing. He does not establish his ability to testify as to "Bayview's" business records or procedures. His affidavit is insufficient to establish proof of mailing by Bayview or plaintiff, if either of them had mailed the notices.

Further, again as with his "Affidavit of Physical Possession," this appears to be a form affidavit. The court surmises that a form affidavit that contained "Bayview" without removal was executed by Mr. Haddod. The fact that Mr. Haddod executed it in that form raises questions of his and its veracity, does the question about his position with plaintiff as discussed above.

Plaintiff attempts to use this affidavit to prove the mailings of both a default notice required by the mortgage, and the mailings required by RPAPL § 1304. Paragraph 9 starts by saying "Assuming" a notice is required to be sent also by certified mail, it is scanned and mailed. Mr. Haddod never states that a certified mailing was made here. There are a number of references to a "qualified member of Plaintiff's" doing certain things relating to the mailings, but no explanation of what that term means, who it refers to, or if Mr. Haddod the "qualified member." Paragraph 14 refers to "sufficient postage to be sent via certified mail on August 12, 2014.", there is no reference to postage for the "regular mailing" required by the statute or of that mailing.

There is no clear reference to regular mailing in this affidavit at all. As to the certified mailing, although a copy of a certified mailing cards were produced among the original submissions, this affidavit states in paragraph 16: "The plaintiff's records reflect that the Default notice was/was not (emphasis added) mailed by certified mail." So this affidavit is unclear as to whether there "was" or "was not" the required certified mailing.

What the term "Default Notice" means as used in this affidavit is not clearly established. There is only a broad statement that "A true and correct copy of the Default Notice(s) is attached hereto at Exhibit "A." Again, as with the first affidavit, there is no Exhibit "A" attached to the affidavit and the court must assume that the affiant refers to the total volume of what was submitted with Mot. #001, attached as Exhibit "A" to this motion.

The court's searching of that record shows that the default notice required by the mortgage was supported by an affirmation of plaintiff's former counsel, as that law firm mailed the document (see Exhibit "A"- Mot #001- Exhibit "C" - "30 day notice[s]"). That mailing was established on the first motion.

It also shows that the mailing of the notices required by RPAPL § 1304 (see Exhibit "A"- Mot #001- Exhibit "C" - "90 day notice[s]") were not prepared or mailed by plaintiff or "Bayview," but by a prior servicer, FCI Lender Services, Inc. ("FCI"). As Mr. Haddod's affidavits, both the one submitted here entitled "Affidavit of [*6]Mailing" and the one submitted with Mot. #001 and part of this motion's Exhibit "A," make no reference to FCI's mailings, their procedures or his familiarity with their business records and practices, his affidavits fail to establish FCI's mailing of the notices required by RPAPL § 1304 to defendant. His conclusory statements, with dated copies of the notices, are insufficient to prove proper mailing (see HSBC Mtge. Corp. v Gerber, 100 AD3d 966 [2d Dept 2012]; Citimortgage, Inc. v Espinal, 134 AD3d 876 [2d Dept 2015]; Cenlar, FSB v Weisz, 136 AD3d 855 [2d Dept 2016]; U. S. Bank, N.A. v Carey, 137 AD3d 894 [2d Dept 2016]; US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]).

Just as with his first "Affidavit of Physical Possession" relating to standing, the deficiencies of this "Affidavit of Mailing," including questions of his position with plaintiff, raise questions of fact as to his ability to provide such an affidavit. Even if he was able to provide such an affidavit as his "Affidavit of Mailing", it fails to establish through evidentiary proof in admissible form that plaintiff has complied with the mailing requirements of RPAPL § 1304.

As with its first motion, plaintiff has not established its prima facie entitlement to judgment as a matter of law since it failed to demonstrate compliance with the mailing of the RPAPL §1304 notices (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95 [2d Dept 2011]). Thus, for this reason alone, plaintiff's motion for summary judgment is to be denied (see Wells Fargo Bank, NA v Burke, 125 AD3d 765 [2d Dept 2015]; Bank of New York Mellon v Aquino, 131 AD3d 1186 [2d Dept. 2015]).

Finally, as with Mot. Seq. #001, plaintiff has not established defendant's default in payment, part of its prima facie case to foreclose the mortgage. The court notes defendant denied the allegations alleging the default in payment contained in paragraph III of the complaint (see Exhibit "A"- Mot #001- Exhibits "D" and "H"). There is no reference to proof of her default in Mr. Haddod's two affidavits submitted here on behalf of plaintiff. Although not argued anywhere by plaintiff, the only possible proof must lie in the originally submitted documents (Ex. "A"). The court already found that proof insufficient in denying Mot #001.

Attempting to camouflage the insufficiencies of plaintiff's submissions, in reply to defendant's counsel's arguments in opposition, plaintiff's counsel claims, with emphasis, that defendant has not made a payment since 2010 (see reply, paragraph 4). He has not established his ability to provide such evidence in admissible form to support the motion, and in fact his statement appears contradicted by plaintiff's prior submissions. Contained in Exhibit "A", the affirmation of plaintiff's first counsel, Mr. Haddod's affidavit as an officer of Longvue, the notices of default purportedly sent as required by both the mortgage and RPAPL § 1304, and the complaint verified by plaintiff's first counsel all claim the default in payment occurred with the January 1, 2012 payment (see Exhibit "A"- Mot #001- affirmation, affidavit, Exhibits "C"and "D").

The court's decision of December 15, 2016 found plaintiff's then counsel and Mr. Haddod unable to establish their ability to testify to that default, and that there was no evidentiary proof in admissible form to establish that default. Counsel clearly was not testifying from his records and did not establish his ability to testify from plaintiff's records pursuant to CPLR 4518 (a). As Mr. Haddod was testifying in his capacity as an officer of Longvue, which became servicer after the default of January 1, 2012, he failed to establish his ability to testify pursuant to CPLR 4518 (a) as to the business records of the then servicer FCI's, or plaintiff to establish the default. If a present servicer attempt to testify concerning the contents of the business records of a prior servicer, or plaintiff, the affiant must establish his/her ability to do so by showing personal knowledge and familiarity with the record keeping practices and procedures of that entity, (see Arch Bay Holding, LLC v Albanese, 146 AD3d 849 [2d Dept 2017]; Aurora Loan Svcs, LLC v Ang, 150 AD3d 649 [2d Dept 2017]). Plaintiff has failed to establish the default in payment of defendant on this submission, even if Exhibit "A" is considered.

Accordingly, plaintiff's motion is denied, and the proposed order marked "not signed." Plaintiff has failed in its two summary judgment motions on these issues, so the action is scheduled for a trial limited to the issues of plaintiff's proof of the default in payment of defendant under the note and mortgage, proof of plaintiff's standing to bring the action and proof of the mailing of the RPAPL § 1304 notices on Tuesday, November 28, 2017 in this part. No further motions are authorized.

This constitutes the Order and decision of the Court. Plaintiff's proposed order is marked "not signed."