In a residential foreclosure action, plaintiff moves for an order granting summary judgment and dismissing the affirmative defenses of Debbie Valery Horsa, appointing a referee, amending the caption, and declaring all non-appearing and non-answering defendants in default (Motion Seq. 3).

1. Notice of Motion (Amended)/Affidavit of Mailing/Proposed Order/Statement of Material Facts/Memorandum of Law/Affirmation of David Wildermuth, Esq./Exhibits A-N

2. Affirmation of Patrick Binakis, Esq. in Opposition/Counterstatement of Material Facts/Exhibit A

3. Reply Affirmation of David Wildermuth, Esq.

By way of background, plaintiff commenced this residential foreclosure action by filing the summons and complaint on August 16, 2019. The subject property is located at 162 Kitchawan Road in South Salem, New York. It is alleged that on or about January 17, 2006, Horsa executed and delivered to plaintiff's predecessor-in-interest, Fairfield County Bank Corp., the subject note secured by a mortgage on the subject property. The mortgage was subsequently [*2]transferred to plaintiff via assignment and delivery of the subject note.^[FN1] Horsa allegedly failed to pay installment payments due on January 1, 2018 and thereafter.

On June 11, 2020, by Order the Court (J. Walker) granted plaintiff's application for alternative service and appointment of a guardian ad litem.

Horsa interposed an answer with affirmative defenses and a counterclaim premised on predatory lending on October 29, 2020.

On June 22, 2021, by Order the Court (J. Walker) relieved the guardian ad litem.^[FN2]

On September 9, 2022, by Order the Court (J. Walker) granted plaintiff's application to dismiss Horsa's counterclaim.

Plaintiff now moves for an order granting summary judgment, dismissing the affirmative defenses of Horsa, appointing a referee, amending the caption, and declaring all non-appearing and non-answering defendants in default.

In support, plaintiff proffers, among other things, the affidavit of Armenia L. Harrell, Vice President Loan Documentation for plaintiff's loan servicing agent, Wells Fargo Bank, N.A. (Wells Fargo). Attached to Harrell's affidavit are copies of 90-day notices sent to Horsa at her last known address in Ridgefield, Connecticut as well as to the subject property, "TrackRight" records demonstrating those mailings, proof of filing statement pursuant to RPAPL 1306, notices of default along with "TrackRight" records demonstrating those mailings, the subject note, mortgage, assignments for the subject mortgage, payment history, a power of attorney for Wells Fargo, and copies of the Truth in Lending Statement, HUD-1 Settlement Statement, and a Hello/Goodbye letter per the Real Estate Settlement Procedures Act (RESPA)^[FN3] for the subject loan.

Harrell also submits a separate affidavit as to the mailing of the 90-day notice and notice of default, wherein Harrell attests to personal knowledge of Wells Fargo's business practices and procedures for mailing such notices. Harrell further attests that Wells Fargo utilizes "TrackRight" to memorialize and track the mailing of these notices and that "TrackRight" records are integrated and relied upon by Wells Fargo in the ordinary course of its mortgage loan servicing business.

As for Horsa's affirmative defenses, plaintiff contends that the defenses are conclusory and meritless at least because plaintiff possessed the note prior to commencement of the action (per Harrell's testimony) and the mortgage was assigned to plaintiff prior to commencement of the action. Plaintiff also contends that it conducted a title search prior to commencing this action to ensure that all necessary parties were named. Further, plaintiff relies on its proofs and [*3]submissions to contend that it complied with RPAPL 1303, 1304, and 1306, CPLR 3012-B, and the Truth in Lending Act (TILA).

To establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note and evidence of default (see Nationstar Mtge., LLC v Medley, 168 AD3d 959, 960 [2d Dept 2019]). A motion for summary judgment shall be supported by "[an] affidavit . . . by a person having knowledge of the facts" (CPLR 3212[b]). Moreover, "[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures" (Citibank, N.A. v Cabrera, 130 AD3d 861, 861 [2d Dept 2015]). That said, records generated by another can be admitted into evidence if a recipient can "establish that the records provided by the maker were incorporated into the recipient's own records and routinely relied upon by the recipient in its own business" (Bank of NY Mellon v Gordon, 171 AD3d 197, 209 [2d Dept 2019]).

Where, as here, a defendant has affirmatively pleaded standing, the plaintiff must prove standing in order to prevail (see Gordon, 171 AD3d at 203). "A plaintiff establishes its standing to foreclose by establishing, inter alia, that it was a holder in physical possession of the subject note prior to the commencement of the action, or that the subject note was assigned to the plaintiff prior to the date of commencement of the action" (Wells Fargo Bank, N.A. v Farfan, 203 AD3d 1107, 1108 [2d Dept 2022]).

Here, plaintiff demonstrated its standing by submitting a chain of recorded mortgage assignments evidencing that the mortgage and note were assigned to plaintiff in 2013 (see id.).

In opposition, Horsa failed to raise a triable issue of fact on this point.

Accordingly, Horsa's first affirmative defense regarding standing is dismissed.

However, the balance of plaintiff's prima facie showing based on Harrell's affidavits and Wells Fargo's records is deficient because plaintiff failed to demonstrate that Wells Fargo had authority to act on plaintiff's behalf regarding the instant mortgage (see Wilmington Sav. Fund Socy., FSB v Diehl, 219 AD3d 781, 783 [2d Dept 2023]; U.S. Bank Trust, N.A. v Rose, 176 AD3d 1012, 1015 [2d Dept 2019]). The power of attorney submitted does not specify that it pertains to the subject mortgage. Instead, the document simply refers to "Transferred Assets" as defined in a certain agreement titled, "Assignment, Assumption and Recognition Agreement dated as of November 25, 2019," but that agreement is not included with plaintiff's submissions and the Court is unable to confirm whether the power of attorney covers the instant mortgage (see Rose, 176 AD3d at 1015; LaSalle Bank N.A. v Browd, 2015 NY Slip Op 30833[U], *5-6 [Sup Ct, Queens County 2015]).

Accordingly, plaintiff has failed to make a prima facie showing that it is entitled to judgment as a matter of law, regardless of the sufficiency of opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

As for the branch of plaintiff's application to amend the caption, Harrell refers to a December 1, 2020 assignment between plaintiff and Wells Fargo and recorded in the Office of Westchester County Clerk at control number 603373508, but same is not submitted with the application.

Accordingly, plaintiff's application to amend the caption to substitute Wells Fargo for plaintiff is DENIED without prejudice.

All other remaining contentions have been considered and are either without merit or rendered moot by the above determination.

Based on the foregoing, it is hereby

ORDERED that plaintiff's motion for an order granting summary judgment and dismissing the affirmative defenses of Debbie Valery Horsa, appointing a referee, amending the caption, and declaring all non-appearing and non-answering defendants in default is GRANTED only to the extent that Horsa's first affirmative defense (standing) is hereby DISMISSED; and it is further

ORDERED that the remainder of plaintiff's motion is DENIED with leave to renew upon proper papers; and it is further

ORDERED that a control date of February 5, 2024 will be set for plaintiff to renew its application.