Upon the following papers read on this motion by plaintiff for summary judgment, dismissing the affirmative defenses, fixing the default of non-answering defendants, appointment of a referee pursuant to RPAPL §1321 and to amend the caption; plaintiff's counsels affirmations, affidavit of an officer of plaintiff's servicer and attached exhibits, affirmation of defendants' prior counsel and attached exhibits and plaintiff's counsel's affirmation in reply with [*2]attached exhibits, it is,

ORDERED that this motion by HSBC Bank, USA National Association as Trustee for Opteum Mortgage Acceptance Corporation, Asset-backed Pass-through Certificates Series 2005-4 for summary judgment against Anthony and Virginia Patricola, dismissing their answer, affirmative defenses and counterclaims, amending the caption to substitute Toni Patricola for the "John Doe" and "Jane Doe" defendants, fixing the default of the non-appearing, non-answering defendants, and for an order of reference pursuant to RPAPL § 1321, is granted in part and denied in part as set forth below; and it is further

ORDERED that plaintiff's application to amend the caption of the action is granted, and the caption shall read as follows:

plaintiff is to serve a copy of this order upon the Calendar Clerk within 30 days of this date and all further proceeding will be under the amended caption; and it is further

ORDERED that the default of the non-appearing, non-answering defendants are fixed and set; and it is further

ORDERED that plaintiff is granted partial summary judgment pursuant to CPLR 3212 (g), dismissing defendants' affirmative defenses and counterclaims; and it is further

ORDERED that pursuant to CPLR § 2218, the court sets the action down for a limited issue trial, limited to the proof of the issue of plaintiff's compliance with the notice requirements of RPAPL § 1304; and it is further

ORDERED that to facilitate that limited issue trial, the court directs limited discovery only on that issue, that all discovery demands are to be served within thirty (30) days of the date of this order, and that all discovery be completed within ninety (90) days of the date of this order; and it is further;

ORDERED that the action is scheduled for a certification conference on Wednesday, December 6, 2017 at 9:30 A.M. at which time the court will direct the filing of the note of issue and set a pre-trial conference to determine a trial date; and it is further

ORDERED that the trial of this matter will remain with this IAS Part 27 and will not be placed in the inventory of the CCP Part, and that upon the completion of discovery and the filing of the note of issue, the court will entertain renewed summary judgment motions from the parties, but in no case will such a motion be entertained more than 30 days after the filing of the note of issue; and it is further

ORDERED that no other motions may be made without permission of the court, which [*3]can be obtained after submission of a letter supporting such an application, and a phone conference, or conference in the part if so directed by the court, on the application; and it is further

ORDERED that plaintiff's application for the appointment of a referee to compute and determine pursuant to RPAPL § 1321 is denied, subject to renewal, and it is further

ORDERED that plaintiff's proposed order is marked "Not Signed."

This is a motion for summary judgment and associated relief made by plaintiff HSBC Bank, USA National Association as Trustee for Opteum Mortgage Acceptance Corporation, Asset-backed Pass-through Certificates Series 2005-4 ("plaintiff') in an action to foreclose a mortgage upon residential real property located at 556 West Alwick Avenue, West Islip, Suffolk County, New York executed by defendants Anthony and Virginia Patricola ("defendants").

Plaintiff commenced the action by filing a summons, complaint and notice of pendency on December 9, 2014; issue was joined by filing of defendants' answer on January 9, 2015, which consisted of general denials, seventeen affirmative defenses (the last being a reservation of rights) and six counterclaims.

Conferences were held in the court's Foreclosure Settlement Conference Part on May 26 and July 30, 2015, the case was released from the part as "Not Settled" and referred to an IAS Part. Compliance with CPLR § 3408 has been established. Originally assigned to Justice Joseph A. Santorelli, the case was reassigned to this part by Administrative Order # 76-17 (Hinrichs, DAJ), dated June 12, 2017. The motion was marked fully submitted on June 15, 2017 and scheduled for oral argument on August 14, 2017. On the afternoon of August 11, 2017 a faxed letter from plaintiff's "new " counsel was received, stating that he had just been retained in substitution of prior counsel and requested the argument be adjourned. By a reply fax, the court advised the parties that the case was removed from the oral argument calendar and that there would be a written decision.

Basic entitlement to summary judgment in favor of a foreclosing plaintiff is established 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]). Here plaintiff has established that by proof submitted in evidentiary form, demonstrating its prima facie entitlement to summary judgment (CPLR 3212; RPAPL § 1321; see Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [2d Dept 1997]). The burden then shifts to defendants to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882 [2d Dept 2010], Zanfini v Chandler, 79 AD3d 1031 [2d Dept 2010]; Citibank, NA v Van Brunt Properties, LCC, 95 AD3d 1158 [2d Dept 2012]).

Defendants' answer and affirmative defenses alone are insufficient to defeat plaintiff's motion (see Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]). Defendants must produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see Washington Mut. Bank v Valencia, 92 AD3d 774 [2d Dept 2012]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]).

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]).

In opposition to plaintiff's motion, defendants only argue plaintiff's lack of standing to bring the action, first and twelfth affirmative defenses, and their first counterclaim. No other affirmative defense or counterclaim was supported in opposition. The failure to raise and support stated affirmative defenses and counterclaims in opposition to a motion for summary judgment renders those defenses abandoned and subject to dismissal (see Kuehne & Nagel Inc. v Baiden, 36 NY2d 539 [1975]; Kronick v L. P. Therault Co., Inc., 70 AD3d 648 [2d Dept 2010]; New York Commercial Bank v. J. Realty F. Rockaway, Ltd., 108 AD3d 756 [2d Dept 2013]; Starkman v. City of Long Beach, 106 AD3d 1076 [2d Dept 2013]; Katz v Miller, 120 AD3d 768 [2d Dept 2014]). Accordingly, defendants' second through eleventh and thirteenth through seventeenth affirmative defenses and five counterclaims are dismissed. Though standing is argued in opposition, defendants' first counterclaim is dismissed as a claim of lack of standing does not support the counterclaim.

Even if supported, defendants' seventh affirmative defense would have been dismissed, as defendants failed to move to dismiss on that issue within sixty days of service of their answer, thereby waiving the issue of service (CPLR 3211 [e]; see Generation Mtge. C. v Medina, 138 AD3d 688 [2d Dept 2016]). Similarly, defendants' tenth affirmative defense claiming that they were not credited all payments made is not viable; a dispute concerning the amount claimed owed by defendants-mortgagors is not a defense to a summary judgment motion, but may be the subject of a hearing before a referee appointed to compute pursuant to RPAPL § 1321 (see Long Island Savings Bank of Centereach v. Denkensohm, 222 AD2d 659 [2d Dept 1995]). Additionally, defendants' fourteenth affirmative defense, a claim of failure to join a necessary party, is not a basis for dismissal, but would only require that such party be joined (see Dime Savings Bank v. Johneas, 172 AD2d 1082 [2d Dept 1991]; Central Mortg. Co. v Davis, 149 AD3d 898 [2d Dept 2017]).

Where plaintiff's standing has been placed in issue by defendants' answer, 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, 151AD3d 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 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]).

Plaintiff's submissions produced the note and mortgage and established evidence of defendants default in payment. Plaintiff has demonstrated its standing by attaching a copy of the indorsed note, to the complaint at the time the action was commenced (see Nationstar Mortg., [*4]LLC v Catizone, 127 AD3d 1151 [2d Dept 2015]; Deutsche Bank Natl. Trust v Leigh, 137 AD3d 841 [2d Dept 2016]; JPMorgan Chase Bank, NA v Weinberger, 142 AD3d 643 [2d Dept 2016]; Nationstar Mortg., LLC v Weisblum, 143 AD3d 866 [2d Dept 2016]; Deutsche Bank National Trust Co. v. Logan, 146 AD3d 861 [2d Dept 2017]; Deutsche Bank Trust v Garrison, 147 AD3d 725 [2d Dept 2017]; Wells Fargo Bank v Thomas, 150 AD3d1312 [2d Dept 2017]; Deutsche Bank Natl Trust Co. v Carlin, __AD3d__, 2017 NY Slip Op 05421[2d Dept 2017]). As plaintiff has established its standing, defendants' first and twelfth affirmative defenses, as well as their first counterclaim, are dismissed.

Although not raised by defendants, plaintiff affirmatively pled in paragraph 5 (c ) of its complaint that it was "in compliance with sending the ninety (90) day notices as required by RPAPL § 1304." and in paragraph 5 (d) that it complied with the filing requirements of RPAPL§ 1306. Defendants answer denied the claims of paragraph 5, putting those allegations in issue. Where plaintiff in a residential foreclosure action alleges in its complaint that it served notices required by RPAPL § 1304, it then becomes part of its prima facie proof in a summary judgment motion and plaintiff must prove its strict compliance with RPAPL § 1304 by admissible proof in evidentiary form (see Aurora Loan Svcs v Wesiblum, 85 AD3d 95 [2d Dept 2011]; Bank of NY Mellon v Aquino, 131 AD3d 1186 [2d Dept 2015]; Zarabi v Movahedian, 136 AD3d 895 [2d Dept 2016]; JPMorgan Chase Bank, N.A. v Kutch, 142 AD3d 536 [2d Dept 2016]; M & T Bank v Joseph, _AD3d_, 2017 NY Slip Op 05587 [2d Dept 2017]).

Plaintiff's submissions established it filing with the Department of Financial Services of the form required by RPAPL § 1306, yet fails to establish that the mailings required by RPAPL § 1304 were made.

The affidavit of an officer of plaintiff's servicer, Everbank, establishes his ability to testify to the business records of Everbank pursuant to CPLR 4518 (a), it does not establish proof of mailing of the notices attached as part of Exhibit "D" to the motion.

First, the notices, are from an entity entitled "Everhome Mortgage." Although this entity may be related to Everbank, there is no admissible proof in evidentiary form to establish that fact.

Second, although the affirmation of plaintiff's counsel (see paragraph 11) states that the notices attached as part of Exhibit "D" were "sent," unlike the attorney's affirmation in Flagstar Bank, FSB v Mendoza, 139 AD3d 898 (2d Dept 2016), this affirmation is insufficient to establish their mailing.

Even if the affidavit of the officer of Everbank established his ability to testify to the "Everhome Mortgage" notices, and if he had identified them in his affidavit (not done, see paragraph 8), the affidavit is insufficient to establish the mailings required by RPAPL § 1304. It merely contains his conclusions from a review of records that the notices were sent on the date thereon.

Unsubstantiated and conclusory statements in the affidavit, along with dated copies of the notice of default, are insufficient to prove that the notices required by RPAPL § 1304 were properly mailed (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]). To establish mailing, plaintiff may provide proof of actual mailing or description of its office's practice and procedure for [*5]mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006]; Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017]). Due proof of the mailing of the RPAPL § 1304 notices is established by submission of an affidavit of service (see JPMorgan Chase Bank, N.A. v Schott, 130 AD3d 875 [2d Dept 2015]; Wells Fargo v Moza, 129 AD3d 946 [2d Dept 2015]) or through business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]); after which a presumption of receipt arises (see Vivane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498 [2015]; Residential Holding Corp. v Scottsdale Ins. Co., supra).

Even if an affiant establishes his ability to testify as to the business records pursuant to CPLR 4518, if he merely states a review of the records establishes the notices were mailed by both regular and certified mail on a certain date, the affidavit is unsubstantiated, conclusory and insufficient to establish the mailing (see JPMorgan Chase Bank, N.A. v Kutch, supra; Cenlar FSB v Censor, 139 AD3d 781 [2d Dept 2016]). He must show his familiarity with office practices and procedures to establish office practices and procedures to insure proper addressing and mailing (see 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]).

Having pled compliance with RPAPL § 1304, but failing to establish it, plaintiff failed to establish its prima facie entitlement to judgment as a matter of law requiring denial of its motion, regardless of the sufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; William J Jenack Estate Appraiser and Auctioneers v Rabizadeh, 22 NY3d 470 [2013]; Jacobsen v New York City Health & Hospitals Corp., 22 NY3d 824 [2014]).

Plaintiff's motion for summary judgment is granted to the extent that it is granted partial summary judgment, pursuant to CPLR 3212 (g) dismissing defendants' affirmative defenses and counterclaims. The only remaining issue of fact is plaintiff's proof of compliance with the requirements relevant to the notices mandated by RPAPL § 1304. Pursuant to CPLR § 2218, the court sets the action down for trial in this part which shall be limited to the proof of those issues. The court notes that plaintiff's Exhibit "D" raises two other issues; the notices are addressed to both defendants on one "paper" and a separate HUD notice concerning "Servicemembers Rights" was enclosed with the notices.

Plaintiff's application to amend the caption to remove the "John Doe" and "Jane Doe" defendants and substitute Toni Patricola in their place is granted upon the proof submitted (see US Bank, N.A. v Boyce, 93 AD3d 872 [2d Dept 2012]; Citimortgage, Inc v Chow Ming Tung, 126 AD3d 841 [2d Dept 2015]).

The default of the non-appearing, non-answering defendants are fixed and set (see U.S. Bank N.A. v Wolherman, 135 AD3d 850 [2d Dept 2016]; HSBC USA, N.A. v Alexander, 124 AD3d 838 [2d Dept 2015]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2d Dept 2014]).

Plaintiff's application for the appointment of a referee pursuant to RPAPL § 1321 is denied, subject to renewal. Plaintiff's proposed order is marked "Not Signed."

The court authorizes limited discovery, renewed motions for summary judgment on the limited issue upon the completion of discovery and the filing of a note of issue, the procedure for [*6]any other motions, the setting of a certification conference and limited issue trial as set forth in the "Ordered" paragraphs above.

This constitutes the Order and decision of the Court.