Supreme Court, Rockland County

Decided on June 1, 2026

Index No. 036176/2019

John P. Collins, Jr., J.

[*1]

The following papers, numbered 1-13, were considered in connection with Plaintiff's Notice of Motion (Motion Seq. No. 3) for an Order (1) confirming the Referee's Report made in accordance with Real Property Actions and Proceedings Law §1321; (2) granting a Judgment of Foreclosure and Sale pursuant to Real Property Actions and Proceedings Law §1351; (3) directing the distribution of the sale proceeds pursuant to Real Property Actions and Proceedings Law §1354; (4) removing John Doe #3 through John Doe #12 as a party defendant in this action as no tenants reside at the property and amending the caption to reflect the removal of "John Doe #3" and "John Doe #12" as a party defendant; (5) substituting U.S. BANK TRUST NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE FOR RCF 2 ACQUISTION TRUST into the caption in the place and stead of Plaintiff, and following such substitution, that the Clerk of the Court amend the docket and electronic docket of the Court accordingly; (6) deeming the Department of Financial Services "Step 2 Filing" timely filed, nunc pro tunc, and (7) such additional relief as the Court may deem just and proper; and also considered in connection with Defendant EM's Notice of Motion (Motion Seq. No. 4) for an Order (a) enjoying and restraining PLAINTIFF, NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER, and its attorneys from proceeding in the pending Foreclosure Action pending a ruling herein; and/or (b) pursuant to Civil Practice Law and Rules §2201 the Rockland County Supreme Court Foreclosure Action pending before this Court Index No. 036176/2019 is hereby "STAYED"; and (c) pursuant to Civil Practice Law and Rules §3408, scheduling a mandatory settlement conference in the pending residential foreclosure action; and/or (d) directing that 20% of the reinstatement be held in escrow as an undertaking with an attorney or law firm as directed by this court, pending resolution of this matter; and (e) such other and further relief as just, proper and equitable:

PAPERS      NUMBERED

Notice of Motion (Motion Seq. No. 3)/Bill of Costs/Affirmation of Christopher

McKenna, Esq./Exhibits A-Y 1

Stipulation to Adjourn (Motion Seq. Nos. 3 and 4) May 30, 2025 2

Stipulation to Adjourn (Motion Seq. Nos. 3 and 4) July 2, 2025 3

Stipulation to Adjourn (Motion Seq. Nos. 3 and 4) August 22, 2025 4

Decision and Order of Hon. Hal B. Greenwald, J.S.C. dated November 21, 2025^FN1

(Motion Seq. Nos. 3 and 4) 5

Letter from Plaintiff counsel dated January 22, 2026 (Motion Seq. Nos. 3 and 4 6

Letter from Defendant EM's counsel dated February 20, 2026

(Motion Seq. Nos. 3 and 4) 7

Letter from Defendant EM's counsel dated February 20, 2026

(Motion Seq. Nos. 3 and 4) — So Ordered by undersigned February 20, 2026 8

Letter from Defendant EM's counsel dated February 22, 2026

(Motion Seq. No. 3) 9

Affirmation of Defendant EM (Motion Seq. No. 3)/Affirmation of

Risa Kass, Esq./Supplemental Affirmation of Risa Kass, Esq./Exhibit A-O 10

Letter from Defendant EM's counsel dated March 10, 2026 11

Stuart P. Frame, Esq. Reply Affirmation/Exhibits 1-3 12

Letter from Defendant EM's counsel dated May 28, 2026 13

Upon the foregoing papers, the Court now rules as follows:

PROCEDURAL HISTORY

The instant foreclosure action was commenced with the filing of the Summons and Complaint on October 31, 2019. See NYSCCEF Doc. No. 1. Defendant EM was served process pursuant to Civil Practice Law and Rules § 308(4) on November 23, 2019, at the subject property, 31 The Promenade, New City, New York (hereinafter "the subject property"). See NYSCEF Doc. No. 8. Defendant TM (deceased) was served process pursuant to Civil Practice Law and Rules § 308(1) on November 18, 2019, at 9 Briarwood Drive, New City, New York. Neither party answered, appeared or joined issue. Defendant TM died on January 27, 2020. See NYSCEF Doc. No. 60.

This is the second acceleration of the subject loan, the first having arisen from HSBC Bank U.S.A., N.A. v. EPM et al., (Rockland County) Index No. 31795/2015 (the "2015 Action"). The 2015 Action was discontinued by stipulation on or about August 5, 2016, following a successful loan modification dated June 7, 2016, which effected a mutual de-acceleration of the debt. Defendant thereafter resumed monthly payments until April 2019.

Following the commencement of this action, the case proceeded through the mandatory settlement conference process pursuant to Civil Practice Law and Rules § 3408. Plaintiff filed a Request for Judicial Intervention (hereinafter RJI) seeking a Foreclosure Settlement Conference on February 14, 2020, and served same via United States Postal Service on Defendant EM at the subject property and on Defendant TM (deceased) at 9 Briarwood Drive, New City, New York. See NYSCEF Doc. Nos. 13-15.

On February 18, 2020, the Foreclosure Settlement Part Clerk uploaded a Foreclosure Conference Notice indicating that the mandatory settlement conference pursuant to § 3408 was scheduled for April 13, 2020. See NYSCEF Doc. No. 17. On March 16, 2020, due to the COVID- 19 pandemic, the Court adjourned the Foreclosure Settlement Conference in this matter to June 15, 2020. See NYSCEF Doc. No. 23. A Virtual Foreclosure Settlement Conference Notice was issued indicating the matter would be heard on October 26, 2020. See NYSCEF Doc. No. 24. At the Foreclosure Settlement Conference on October 26, 2020, both Defendants failed to appear, and the matter was adjourned to November 30, 2020. See NYSCEF Doc. No. 27. On November 30, 2020, a Foreclosure Settlement Conference occurred and, as previously, both Defendants failed to appear. Thereafter, the matter was released from the Foreclosure Settlement Part. See NYSCEF Doc. No. 32.

On January 12, 2021, the Court issued a Notice stating that a virtual settlement conference scheduled for March 10, 2021, was now adjourned to May 18, 2021. See NYSCEF Doc. No. 34. On February 22, 2021, Defendant EM, pro se, filed a COVID-19 Hardship Declaration dated February 17, 2021. See NYSCEF Doc. No. 35. On September 23, 2021, at a statutorily mandated foreclosure proceeding, Defendant EM's COVID-19 Hardship Declaration was accepted. Plaintiff opted not to challenge the Declaration and the matter was stayed until January 15, 2022. See NYSCEF Doc. No. 40. In a second Order, it was decided that the [*2]"[p]arties are actively pursuing settlement" and noted that Defendant TM was deceased and that the action continued pursuant to Civil Practice Law and Rules §1015 since "her interest in the subject property passed automatically to defendant EM by operation of title."^FN2 See NYSCEF Doc. No. 41.

Plaintiff filed a motion for an order of reference and default judgment (Motion Seq. No. 2) on October 11, 2024, with a return date of November 7, 2024. See NYSCEF Doc. Nos. 86 — 108. In response, on November 7, 2024, Risa Kass, Esq. filed a limited Notice of Appearance on behalf of Defendant EM"solely for the purposes of requesting a court conference." See NYSCEF Doc. No. 109. Subsequently, on November 21, 2024, Attorney Kass submitted a letter stating that she was in receipt of "payoff" and "reinstatement" letters dated November 8, 2024, and that Defendant EMwanted to reinstate the mortgage. Further, she stated that the Defendant had additional monies he wanted to pay towards further delinquency costs/expenses but there was an issue with the Defendant's previous matrimonial counsel regarding release of the documents necessary to transfer title of the subject property to EM after T M's death. See NYSCEF Doc. Nos. 110-111.

On January 31, 2025,^FN3 Plaintiff's unopposed motion for an Order of Reference and Default Judgment was granted. See NYSCEF Doc. No. 112. Referee Jay Golland, Esq. was appointed to compute the amount due. On February 27, 2025, the Referee executed his Oath and Report of Amount Due, computing the total amount owed to Plaintiff as $678,920.00 as of June 29, 2023, and determining that the property should be sold as one parcel. Plaintiff served a Notice of Computation on Defendants on February 20—21, 2025, affording the Defendant an opportunity to object. No written objection was filed by Defendant within the time prescribed.

On April 5, 2024, Attorney Kass submitted a letter to the Court again seeking a conference "to discuss the release of the deed" on the subject property that was held in escrow by Defendant EM's matrimonial counsel, as the mortgage could not be reinstated without resolution of this issue. See NYSCEF Doc. No. 115. Attorney Kass submitted a second letter at the request of Judge Greenwald delineating Defendant M's efforts to communicate with Plaintiff and petitioners in the surrogate matter. See NYSCEF Doc. No. 116. In response, on April 9, 2025, the Court denied Attorney Kass' request for a conference. See NYSCEF Doc. No. 117.

On April 30, 2025, Plaintiff filed the instant motion for Judgment of Foreclosure and Sale (Motion Seq. No. 3). See NYSCEF Doc. No. 118 - 147. On May 19, 2025, Defendant EM filed a cross motion (Motion Seq. No. 4) for a temporary restraining order, a stay of the instant action, and scheduling of a § 3408 settlement conference. See NYSCEF Doc. No. 148 —151. Subsequent to the filing of the cross motion, Attorney Kass filed an Amended Notice of Appearance to include representation of Defendant EM as to the pending motions (Motion Seq. Nos. 3 and 4). See NYSCEF Doc. Nos. 152-153. The parties engaged in settlement negotiations from May 2025 through February 2026, during which time the motions were adjourned on multiple occasions. See NYSCEF Doc. Nos. 156 — 161. On November 21, 2025, the Court granted Defendant's request for a stay through January 26, 2026, to facilitate loss mitigation. See [*3]NYSCEF Doc. Nos. 162 — 163.

On January 22, 2026, Attorney Kass submitted a letter to the undersigned indicating that Defendant EM was actively engaged in "ongoing resolution efforts" and that the "title issue" that was the basis of the stay granted by Judge Greenwald had been resolved. See NYSCEF Doc. No. 166. In response, Plaintiff's counsel informed the undersigned that Defendant EM was being reviewed for a Loss Mitigation Application and sought to hold the pending motions in abeyance. See NYSCEF Doc. Nos. 167 - 168.

The Court granted the Plaintiff's request, and the pending motions were adjourned to March 6, 2026. See NYSCEF Doc. No. 169. Attorney Kass submitted a letter to the Court on January 23, 2026, stating that negotiations were unsuccessful and seeking an earlier appearance date. See NYSCEF Doc. No. 170. In response, the return date of the pending motions was changed to February 20, 2026. See NYSCEF Doc. No. 171. On February 20, 2026, Attorney Kass appeared, despite the matter being marked as "no appearances," and submitted a letter again raising arguments regarding Defendant EM's objection to the confirmation of the Referee Report. See NYSCEF Doc. No. 172.

The Court directed Attorney Kass to file her arguments in opposition to the pending motions on or before February 27, 2026. See NYSCEF Doc. No. 173. After seeking an adjournment to file the opposition, Defendant EM filed opposition to Plaintiff's motion on March 5, 2026. See NYSCEF Doc. No. 176 — 195. Plaintiff filed opposition to Defendant EM's newly submitted opposition and additional letters in opposition. See NYSCEF Doc. Nos. 197-198.

DISCUSSION

A. Motion Sequence No. 3 — Plaintiff's Motion to Confirm the Referee's Report and for Judgment of Foreclosure and Sale

Plaintiff seeks to confirm the Referee Report pursuant to Real Property Actions Proceedings Law § 1321 and for a Judgment of Foreclosure pursuant to Real Property Actions and Proceedings Law § 1351. Plaintiff asserts that they have established all the required elements for foreclosure. It is now seeking to sell the property and have the sale proceeds distributed in accordance with Real Property Actions and Proceedings Law § 1354. In support of the application, Plaintiff has included the Oath and Report of the appointed referee, along with all the required documents previously annexed to their motion for an Order of Reference and Default Judgment as to all Defendants -- including Defendant EM.

Defendant EM^FN4 filed opposition to the instant motion asserting that his rights would be affected by the Court's granting of the Judgment of Foreclosure and Sale. Defendant contends that he has attempted to resolve this action since the Referee computed the amount due (as of June 29, 2023), by submitting extensive financial documentation and responding to Plaintiff's loan service's requests. Additionally, Defendant asserts that it is necessary for the Court to scrutinize the charges accumulated since 2023 as part of the review of Plaintiff's motion and confirmation of the Referee's Report. In the alternative Defendant seeks a limited hearing as to the accuracy and reasonableness of the amounts due to Plaintiff as determined by the Referee.

Second, Defendant alleges that the Plaintiff did not engage in meaningful loss mitigation since the proposed modification increased the interest rate of the initial loan from 3.5% to 6.25%, increasing the long-term payment obligation. Defendant also contends that the loss mitigation denial -- issued by Plaintiff's servicer — was inappropriate given that the necessary documents, while late, were submitted "shortly thereafter" after the deadline and while the loss mitigation review process was still ongoing.

Third, Defendant argues that the Plaintiff has provided correspondence containing a disclosure indicating that Plaintiff believes the statute of limitations for collection of the debt may have expired. Defendant EM specifically notes that he has not moved for dismissal on statute of limitations grounds.

Finally, Defendant asserts that he retained counsel and has incurred approximately eighteen thousand ($18,000) in legal fees during reinstatement discussions and loss mitigation review. Attorney Kass, Defendant's counsel, is also his wife and co-resident of the subject property, has submitted billing records annexed to the Defendant's opposition that reflect time she has devoted to the instant action and that time has detracted from her work performance for other paying clients. See NYSCEF Doc. No. 178. As a result, Attorney Kass asks the Court to consider the financial impact and loss of income she has incurred in an attempt to resolve the instant foreclosure action. See NYSCEF Doc. No. 178.

1. Confirmation of the Referee's Report

The Court will confirm a referee's report of computation "whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility." U.S. Bank National Association v Sheth, 177 AD3d 1018, 1019 [2d Dept 2019] (internal citations omitted); See also Citimortgage, Inc. . Kidd, 148 AD3d 767 [2d Dept 2017]; Nationstar Mtge., LLC v Vordermeier, 165 AD3d 822 [2d Dept 2018]. A plaintiff's proposed computation is substantially supported by the record where it is "premised upon business records produced by plaintiff." Wells Fargo Bank, N.A. v .Zelaya, 59 Misc 3d 1219(A) (Suffolk County 2017).

Here, the Referee's Report is based upon the sworn affidavit of Rebecca C. Wallace, a representative of the Plaintiff, which attests to the admissible business records of Plaintiff reflecting the amounts due and owing. Those business records were produced and filed with the Court. See NYSCEF Doc. No. 136. The Plaintiff has established a proper foundation for the admission of these records pursuant to Civil Practice Law and Rules § 4518(a), demonstrating that the records were (1) made in the regular course of business; (2) made pursuant to the regular practice of that business; and (3) made at or about the time of the acts recorded. See Bank of New York Mellon v Gordon, 171 AD3d 197, 204—205 [2d Dept 2019]; People v Kennedy, 68 NY2d 569, 579—580 [1986]. Accordingly, the Referee's computation is substantially supported by the record and must be confirmed.

2. Timeliness of Defendant's Objection to the Referee's Report

Independently, the Defendant's challenge to the Referee's Report is time-barred. Civil Practice Law and Rules § 4403 requires that a motion to reject a referee's report be filed within fifteen days of the filing of the report. The Referee's Report was filed with the Court on April 30, 2025, as part of Plaintiff's motion papers. Defendant accordingly had until May 15, 2025, to [*4]move to reject the Report. Defendant did not file his cross-motion until May 19, 2025—four days after the statutory deadline. His failure to timely move constitutes a waiver of any objection to the Referee's Report as a matter of law. See HSBC Bank USA, National Association v Sewell, 156 NYS3d 352, 354 [2d Dept 2021] (holding that failure to comply with Civil Practice Law and Rules § 4403 and 22 NYCRR 202.44(a) renders a motion to reject untimely].

This determination is further reinforced by the Defendant's failure to object to Plaintiff's Notice of Computation within the time prescribed therein. Where a defendant does not submit written objections to a proposed computation by the date specified in the notice, the referee is not required to conduct a hearing prior to issuing the report. See Deutsche Bank National Trust Co. v Wentworth, 211 AD3d 684, 685—686 [2d Dept 2022]; See also Capital One, N.A. v Knollwood Properties II, LLC, 98 AD3d 707, 708 [2d Dept 2012]. The Defendant's belated challenge to the computation is therefore both procedurally waived and substantively unsupported.

3. Defendant's Affirmative Defenses and Counterclaims

Plaintiff moves pursuant to Civil Practice Law and Rules § 3211(b) to dismiss all of Defendant's affirmative defenses and counterclaims. In moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the defense is without merit as a matter of law. See Gonzalez v Wingate at Beacon, 137 AD3d 747 [2d Dept 2016].

The Court finds that all of Defendant's affirmative defenses and counterclaims are barred by the express waiver contained in Section V of the Consolidation, Extension, and Modification Agreement ("CEMA"), which provides: "I agree that I have no right of set-off or counterclaim, or any defense to the obligations of the Consolidated Note or the Consolidated Mortgage." See NYSCEF Doc. No. 124, p. 43. Such waivers of the right to interpose defenses, counterclaims, or set-offs in foreclosure actions are well-settled to be enforceable under New York law and do not violate public policy. See Weiss v Phillips, 157 AD3d 1, 11—12 [1st Dept 2017]; See also Car-Rol Funding Corp. v Castronovo, 168 AD3d 666, 667 [2d Dept 2019]; Inland Mtge. Capital Corp. v Realty Equities NM, LLC, 71 AD3d 1089, 1090 [2d Dept 2010]; Rugg v O'Donnell, 159 AD3d 1606, 1607—1608 [4th Dept 2018]. Accordingly, Defendant's affirmative defenses and counterclaims are dismissed in their entirety pursuant to Civil Practice Law and Rules § 3211(b).

4. Defendant's Bad Faith Argument

Defendant contends that Plaintiff failed to negotiate in good faith during the loss mitigation process, pointing to repeated deficiency notices from servicer Selene Finance LP, an alleged circular documentation review, and a modification offer that materially increased the interest rate and total repayment obligation relative to the original loan terms. The Court has carefully considered the Defendant's submissions, including the exhibits reflecting the loan modification communications, the reinstatement figure of $322,770.38 issued December 24, 2025, and the Broker Price Opinion reflecting a property value of approximately $952,000 as of January 1, 2026.

The Court nonetheless concludes that the Defendant's bad faith argument fails as a matter of law. The statutory obligation to negotiate in good faith under Civil Practice Law and Rules § 3408(f) is measured by the parties' conduct within mandatory foreclosure settlement conferencing, not by voluntary loss mitigation discussions conducted after the case has been [*5]released from the settlement conference part. See U.S. Bank Nat. Ass'n v McCrory, 137 AD3d 1517, 1518 [3d Dep 2016]; See also U.S. Bank N.A. v Sarmiento, 121 AD3d 187, 203—204 [2d Dept 2014].

Here, it is undisputed that this case was released from the § 3408 settlement conference part on November 30, 2020—more than five years before the filing of the instant motions—when the Defendant himself failed to appear at the scheduled conference. See NYSCEF Doc. No. 32. Plaintiff's compliance with its § 3408 obligation is thus established as law of the case.

Moreover, the voluntary loss mitigation discussions that followed the release from conferencing do not give rise to an enforceable good faith obligation. Plaintiff was not required to offer modification terms identical to the original 3.5% fixed rate, which itself reflected market conditions prevailing in 2009 and 2016. Offering a modification at prevailing market rates does not constitute bad faith. The Court notes that the Defendant was represented by counsel throughout the post-conference negotiations, who is not only Defendant EM's wife residing in the subject property with her son, but was a co-applicant on the loss mitigation applications and was required to submit financial documentation in support of the application. See NYSCEF Doc. Nos. 178, 180-191.

Further, Defendant had ample opportunity to either accept Plaintiff's offer or invoke his rights under Civil Practice Law and Rules § 3216 to compel resumption of prosecution if he believed the proceedings were being unduly delayed. He did neither. In fact, the record establishes that any delay in concluding this action inured substantially to the Defendant's benefit, as he remained in possession of the Subject Premises since commencement of the action, which has appreciated significantly in value, without making any mortgage payments since 2019. Accordingly, Defendant's bad faith argument is without legal merit and is rejected.

5. Statute of Limitations

Defendant requests that the Court exercise caution in granting Plaintiff's motion considering the boilerplate statutory disclosure in the servicer's December 24, 2025, correspondence advising that the creditor believed the statute of limitations for collection of the debt may have expired. See NYSCEF Doc. No. 187. The Court declines to treat this standardized consumer protection disclosure as evidence that the action is time-barred. The Defendant explicitly concedes in his own motion papers that he "does not move for dismissal on statute of limitations grounds." See NYSCEF Doc. No. 177, ¶ 50.

Having disclaimed the defense, the Defendant cannot invoke it collaterally to impede confirmation of the Referee's Report. The Court further observes that the 2016 loan modification, which reset the loan terms and payment schedule, constituted a mutual acknowledgment of the debt and a de-acceleration of any prior acceleration, and the instant action was timely commenced following the April 2019 default. See NYSCEF Doc. No. 199, ¶¶ 7—8.

6. Caption Amendment and Plaintiff Substitution

Plaintiff requests that the caption be amended to substitute U.S. Bank Trust National Association, Not in Its Individual Capacity But Solely as Owner Trustee for RCF 2 Acquisition Trust (the "Substitute Plaintiff") as the current owner and holder of the note and mortgage in place of Nationstar Mortgage LLC d/b/a Mr. Cooper, and that fictitiously named defendants [*6]John Doe #3 through John Doe #12 be removed from the caption. Plaintiff has established by written assignment, recorded in the Rockland County Clerk's office at Instrument Number 2023- 00013872, that the mortgage was duly transferred to the Substitute Plaintiff. See NYSCEF Doc. No. 121, ¶ 14; Exhibit D. These requests are granted. See Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225 [2d Dept 2014].

7. Defendant's Request for Counsel Fees

Defendant's counsel, in effect, seeks counsel fees as delineated in her Supplemental Affirmation and upon the submission of her billing records. See NYSCEF Doc. Nos. 178, 194-195. Defendant's counsel, Attorney Kass, submitted a Retainer Agreement dated November 26, 2025, which is more than a year after her initial Notice of Appearance was filed in this matter and approximately six (6) months after she filed her second Notice of Appearance. See NYSCEF Doc. Nos. 109, 152-153.

Attorney Kass was retained to represent Defendant in his Surrogate Court Matters and only references the foreclosure matter in a handwritten notation on the top after "Re" for a retainer fee of "$0.00." See NYSCEF Doc. No. 194. Additionally, the billing records annexed by Attorney Kass indicate invoices were issued beginning on November 30, 2024, with amounts charged to Defendant, no documentation of monies received, and handwritten markings throughout altering some of the amounts owed to zero as to the Surrogate's matter. See NYSCEF Doc. No. 195.

In as much as Defendant seeks counsel fees on behalf of Attorney Kass, the Court finds the request disingenuous. Attorney Kass is not only Defendant's counsel, but also his spouse, a co-resident of the subject property, and a co-applicant in the loan modification applications. Therefore, as a resident of the home, Attorney Kass -- like a tenant -- has an interest in the property pursuant to Real Property Actions and Proceedings Law § 1311. See U.S. Bank Trust, N.A. v Gayle, 247 AD3d 1090, 1091 [2d Dept 2026]; See also Krotchta v Green, 121 Misc 2d 471 [City Court, Yonkers, 1983]. In essence, Attorney Kass has been acting pro se as to her own interests in the property.

Defendant nor Attorney Kass has neither provided a statutory or contractual basis for attorney's fees to be paid in this matter nor case law in support of such a request. Further, "the law is not uniform regarding whether a pro se attorney should be permitted to recover the reasonable value of legal services in situations where counsel fees actually paid to a retained attorney would be otherwise allowed." In re County of Cortland, 90 AD3d 1277, 1278 [3d Dept 2011] citing Kay v Ehrler, 499 US 432, 437-438 [1991].

Even if there was a statutory basis for attorney's fees, Attorney Kass has not demonstrated that she lost time from her law practice or law-related employment in litigating this matter. In a foreclosure action in which a pro se attorney has an interest in the property, the awarding of counsel fees without a statutory or contractual basis would be error. See Federal National Mortgage Association v Johnson, 177 AD3d 1148 [3d Dept 2019]. This application is denied in its entirety.

B. Motion Sequence No. 4 — Defendant's Cross-Motion

Defendant's cross-motion seeks: (1) denial of confirmation of the Referee's Report as presently submitted; (2) a direction that Plaintiff submit a supplemental affidavit itemizing all post- reference interest, advances, servicing charges, and litigation costs with supporting [*7]documentation; (3) a limited hearing as to the accuracy and reasonableness of those amounts; (4) a reduction or disallowance of unsupported charges; and (5) such other and further relief as the Court deems just and proper.

For all the reasons set forth above, the Defendant's cross-motion is denied in its entirety. The Referee's Report is substantially supported by Plaintiff's admissible business records and is therefore confirmed. The Defendant waived his right to challenge the Report by failing to file a timely motion to reject under Civil Practice Law and Rules § 4403, and by failing to submit written objections to the Notice of Computation. His affirmative defenses are barred by the CEMA waiver. His bad faith argument fails as a matter of law. His statute of limitations argument has been expressly disclaimed. The Court has considered and rejects each ground advanced in the cross- motion.

The Court is not unmindful of the difficult personal circumstances described by Defendant EM— including the loss of his former spouse TM to cancer, the complications arising from the post-divorce estate proceedings in Surrogate's Court, the impact of the COVID-19 pandemic on his employment, and his evident desire to preserve the family home for his children.^FN5

These circumstances are poignant, and the Court has given them appropriate weight. However, the equitable powers of this Court in a foreclosure proceeding cannot be exercised so as to indefinitely deprive a secured creditor of its contractual rights, particularly where the default has persisted for over six (6) years, where the Defendant received the benefit of a prior loan modification, and where the Defendant's own litigation conduct—including multiple stays, missed conference appearances, and failure to timely submit necessary documents—has substantially extended the duration of this action. The record reflects that despite good faith efforts at loss mitigation, the parties could not agree, and the Plaintiff is entitled to the requested relief.

The Court has also considered the argument that the Referee's Report figure of $678,920.00 as of June 29, 2023, has become stale by reason of the passage of time and additional accruals during the loss mitigation period. The Court notes that the proposed Judgment of Foreclosure and Sale submitted by Plaintiff properly provides for the application of interest at the note rate through entry of judgment and at the statutory default rate thereafter, which adequately accounts for intervening accruals without requiring a new hearing. The Defendant does not dispute the underlying computation method or the accuracy of the June 29, 2023, figure; his objection is purely to the passage of time since that date. This is not a basis upon which to deny confirmation.

In arriving at this decision, the Court has reviewed, evaluated, and considered all the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Motion Sequence No. 3, Plaintiff's motion to confirm the Referee's Report and for Judgment of Foreclosure and Sale, is GRANTED in its entirety; and it is further

ORDERED that the Report of Referee Jay Golland, Esq., dated February 27, 2025, computing the amount due and owing to Plaintiff as $678,920.00 as of June 29, 2023, together with interest at the note rate thereafter until entry of judgment and at the statutory rate, thereafter, is hereby CONFIRMED; and it is further

ORDERED that Defendant's affirmative defenses and counterclaims are DISMISSED in their entirety pursuant to Civil Practice Law and Rules § 3211(b); and it is further

ORDERED that the caption herein is amended to substitute U.S. BANK TRUST NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE FOR RCF 2 ACQUISITION TRUST as Plaintiff in the place and stead of Nationstar Mortgage LLC d/b/a Mr. Cooper, and that the Clerk of the Court is directed to amend the docket accordingly; and it is further

ORDERED that the fictitiously named defendants "John Doe #3" through "John Doe #12" are hereby stricken from the caption of this action without prejudice to any proceedings herein; and it is further

ORDERED that a Judgment of Foreclosure and Sale shall be entered directing the sale of the Subject Premises at 31 The Promenade, New City, New York 10956, Section 34.18, Block 1, Lot 29, County of Rockland, pursuant to Real Property Actions and Proceedings Law § 1351, with the proceeds of sale to be distributed in accordance with Real Property Actions and Proceedings Law § 1354; and it is further

ORDERED that the Department of Financial Services "Step 2 Filing" is deemed timely filed, nunc pro tunc; and it is further

ORDERED that Motion Sequence No. 4, Defendant's cross-motion, is DENIED in its entirety; and it is further

ORDERED that Plaintiff's counsel shall settle a Judgment of Foreclosure and Sale on notice consistent with this Decision and Order within thirty (30) days of entry hereof; and it is further

ORDERED that a copy of this Decision and Order with Notice of Entry shall be served upon all parties or their counsel of record within ten (10) days of entry.

The foregoing constitutes the Decision and Order of this Court on Motion Seq. Nos. 3 and 4.

Dated: June 1, 2026

New City, New York