The following papers numbered EF127-EF135 read on this motion by assignee of the Plaintiff, WINDSOR PARK ASSET HOLDING TRUST C/O U.S. BANK TRUST NATIONAL ASSOCIATION ("Windsor Park"), for an Order pursuant to 22 NYCRR § 202.44 [a] and New York Civil Practice Law and Rules ("CPLR") § 4403, for an order (a) rejecting the Referee's Report of Proposed Findings of Fact dated May 14, 2024 ^[FN1] (the "Referee's Findings") in its entirety; and (b) to accept the facts and documentary evidence as outlined in the motion, which conclusively demonstrate that Plaintiff, THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE ON BEHALF OF THE FDIC 2013-N1 ASSET TRUST ("Plaintiff"), had control of the electronic note prior to commencement of the action; therefore, had standing to commence this action; or in the alternative, (c) to schedule a new trial to make new findings with additional testimony as to [*2]Plaintiff's standing; and (d) for such other, further and different relief as this Court may deem just and proper. Defendant COURTNEY CARPENTER ("Carpenter") opposes and cross-moves for an Order (a) confirming the Referee's Findings pursuant to 22 NYCRR § 202.44 and/or CPLR § 4403; and (b) granting such other and further relief as this Court may deem just and proper. Windsor Park opposes Carpenter's cross motion.

Upon the foregoing papers, it is ordered that Plaintiff's motion and Carpenter's cross-motion are each DENIED for the following reasons:

The instant matter arises from a commercial mortgage foreclosure action seeking to foreclose the mortgage recorded against the real property located at 115-70 203 Street, St. Albans, New York, 11412 ("the property").

On April 3, 2017, the Hon. Rudolph E. Greco issued an Order ^[FN2] denying Plaintiff's motion for, inter alia, summary judgment and an Order of Reference, finding that, upon a review of the documentation submitted in support of the motion, there was a question of fact as to whether Plaintiff was the holder of the note for the property at the time the instant action was commenced as Plaintiff's "Certificate of Authentication indicates that [it] did not control the electronic note as defined by 15 USC § 7021 when this action was commenced and FDIC as Receiver for AmTrust Bank did."^[FN3]

Plaintiff then filed a motion ^[FN4] seeking, among other things, an Order granting Plaintiff summary judgment against Carpenter; amending the caption to substitute Windsor Park as the plaintiff in this matter; and granting an Order of Reference. On January 15, 2019, the Hon. Rudolph E. Greco issued an Order ^[FN5] , in relevant part, denying Plaintiff's request for summary judgment against Carpenter, substitution of Windsor Park as plaintiff, and for an Order of Reference stating that "[t]he additional facts submitted in the new affidavit in support were not newly discovered and the plaintiff did not give any reason for its failure to submit those facts in the original motion" and that substitution of the plaintiff in this matter was not appropriate given the issue of fact concerning the Plaintiff's standing in this matter.^[FN6]

A non-jury trial concerning the issue of the Plaintiff's standing was then held on January 11, 2024, by Court Attorney Referee Alexander Zervopoulos, Esq. ("Court Attorney Referee Zervopoulos"). It is undisputed that at said trial, during Plaintiff's case, testimony was offered by Karen Schell, an employee of Roundpoint Mortgage ("Roundpoint"), Windsor Park's servicer and attorney in fact, and Kristin Trompisz, an employee of Nationstar Mortgage ("Nationstar"), Plaintiff's predecessor in interest, doing business as Mr. Cooper. No testimony was offered on behalf of Carpenter. Following the non-jury trial, Court Attorney Referee Zervopoulos issued the [*3]following findings:^[FN7]

1. On October 28, 2008, Carpenter executed a note in favor of AmTrust Bank ("AmTrust"), wherein he promised to repay the amount of $461,600.00 and gave AmTrust a mortgage against real property known as 115-70 203rd Avenue, St. Albans, New York 11412. (Ex. 1,4, 5, Tr. 50-53)

2. The note was originally in the form of an electronic note ("eNote") which was signed electronically by Carpenter. (Ex. 1, Tr. 20, 28, 29)

3. Subsequently, the subject mortgage was transferred from AmTrust to Federal Deposit Insurance Company as receiver for AmTrust ("FDIC") to Nationstar by written assignment, dated September 26, 2011 (Ex. 6, Tr. 53); from FDIC to [Plaintiff] by written assignment, dated December 9, 2013 (Ex. 7, Tr. 57-62); and from [Plaintiff] to [Windsor Park], by written assignment, dated June 23, 2017. (Ex. 8, Tr. 20, 63, 64)

7. According to the MERS eRegistry and eNote Transfer History, Nationstar is reflected as the holder of the eNote from October 30, 2013, when it was transferred from FDIC, until, at least, July 7, 2020, when the eNote was converted to a physical "paper' note. (Ex. 9, 10, Tr. 21, 37, 111)

8. Carpenter defaulted in repaying the loan, by failing to make the monthly payment that became due on July 1, 2009, together with the monthly payments due thereafter. (Ex. 16, 17, Tr. 77)

9. On May 15, 2013, Nationstar sent a notice of default and right to cure, advising Carpenter that $181,248. 89 is due by June 19, 2013, in order to cure the default (Ex. 11) and Seneca on behalf of [Plaintiff] sent 90 day notices, pursuant to RPAPL 1304, to Carpenter on May 16, 2014 (Ex. 12), by first class and certified mail. (Ex 13, 15, Tr. 60-70, 101)

10. Seneca became the servicing company for [Plaintiff] pursuant to limited power of attorney from FDIC to Seneca, dated August 22, 2014, effective August 11, 2014. (Ex. A, Tr. 100, 101)

11. On February 17, 2015, [Plaintiff] commenced this action, alleging that Carpenter defaulted in paying the monthly installment due on July 1, 2009, and thereafter, in violation of the terms of the mortgage, and that it elected to accelerate the mortgage debt. A copy of the eNote, which indicates that it was electronically signed by Carpenter, as well as a Name Affidavit by Carpenter, were attached to the summons and complaint. (Ex. 1, Ef. 1)

12. Additionally, a Certificate of Authentication by John R. Maclaber (Maclaber), Assistant Vice President of Seneca, dated September 25, 2014, was attached to the summons and complaint, wherein, Maclaber averred, inter alia, that as of that date:

'FDIC AS RECEIVER FOR AMTRUST BANK (hereinafter "Plaintiff') maintains a copy of the Borrower's electronic promissory note on behalf of Plaintiff I am responsible for overseeing the process by which Plaintiff maintains the electronic promissory notes evidencing residential mortgage loans. (Electronic Records). That Plaintiff has control of the Electronic Record as defined by ESIGN Act 15 USC § 7001 et seq., and particularly 15 USC § 7021.

That there exists a single, unique authoritative copy of the Electronic Record" (Ex. 1, B, Tr. 103-106)

13. According to Roundpoint's business records, plaintiff has not made any payments since July 2009 and as of December 14, 2023, the principal balance of $458,838.32 with interest of $458,700.71 and escrow advance of $133,738.88 was due. (Ex. 17, Tr. 77-79)

Ultimately, Court Attorney Referee Zervopoulos concluded that "plaintiff failed to demonstrate that it had control of the eNote, and was thus its "holder" at the time of commencement of the action" as the "MERS eRegistry and eNote Transfer History and Information presented by plaintiff, Nationstar is reflected as the holder of the eNote from October 30,2013, when FDIC transferred the eNote to it, until, at least, July 7, 2020 . . . ." Court Attorney Referee Zervopoulos then recommended that the Plaintiff's claims against Carpenter be dismissed in their entirety. A transcript of the non-jury trial ^[FN8] and the Referee's Findings were filed and uploaded to NYSCEF on May 16, 2024.

On May 5, 2025, Windsor Park filed the instant motion. On May 29, 2025, Carpenter filed his cross-motion.

As a preliminary matter, both Windsor Park's motion to reject the Referee's Findings and Carpenter's cross-motion to confirm the Referee's Findings, are untimely.

CPLR § 4403 states, in relevant part:

Upon the motion of any party or on his own initiative, the judge required to decide the issue may confirm or reject, in whole or in part, the verdict of an advisory jury or the report of a referee to report; may make new findings with or without taking additional testimony; and may order a new trial or hearing. The motion shall be made within fifteen days after the verdict or the filing of the report and prior to further trial in the action. (emphasis added).

Similarly, 22 NYCRR § 202.44 [a] provides that:

When a judicial hearing officer or referee appointed to hear and report has duly filed his or her report, together with the transcript of testimony taken and all papers and exhibits before him or her in the proceedings, if any, and has duly given notice to each party of the filing of the report, the plaintiff shall move on notice to confirm or reject all or part of the report within 15 days after notice of such filing was given. If plaintiff fails to make the motion, the defendant shall so move within 30 days after notice of such filing was given. (emphasis added).

Here, Plaintiff's motion was filed almost one year after the filing of the Referee's Findings on May 16, 2024, and Carpenter's cross-motion was filed over one year after said date. Thus, both parties failed to comply with 22 NYCRR § 202.44 [a] and CPLR § 4403 and said motions are untimely. Deutsche Bank National Trust Company v. Gopaul, 229 AD3d 433 [2d Dept. 2024]; HSBC Bank USA, National Association v. Sewell, 198 AD3d 953 [2d Dept. 2021].

As such, Plaintiff's motion and Carpenter's cross-motion are each DENIED in their [*4]entirety.

However, CPLR § 4403 does permit a Court, on its own initiative, to confirm or reject a referee's report. See CPLR § 4403. A Court is not bound by the same time restrains as the parties involved in a matter when deciding whether to confirm or reject a referee's findings and may do so without a time limitation. Matter of Breland (Motor Veh. Acc. Indem. Corp.), 24 AD2d 881 [2d Dept. 1965)."The report of a Referee should be confirmed whenever the findings are substantially supported by the record, and the Referee has clearly defined the issues and resolved matters of credibility." Stone v. Stone, 229 AD2d 388, 388 [2d Dept. 1996]; Flagstar Bank, F.S.B. v. Konig, 153, AD3d 790; 790-791 [2d Dept. 2017].

Here, the Referee's Findings were substantially supported by the record as discussed above.

Accordingly, it is hereby:

ORDERED, that the Referee's Findings dated May 14, 2024, are CONFIRMED; and it is further

ORDERED, that instant matter is dismissed, with prejudice, as against Carpenter; and it is further

ORDERED, that all other requests for relief not specifically granted herein are DENIED in their entirety; and it is further

ORDERED, that Plaintiff shall file and serve a copy of this Order with Notice of Entry upon the clerk of this court and upon all parties within 20 days of the date of this Order.

This constitutes the Decision of the Court.