FREEDOM MORTGAGE CORPORATION v. TORO

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FREEDOM MORTGAGE CORPORATION, appellant, v. Rosita TORO, et al., defendants; et al., nonparties.

Decided: January 29, 2014

PETER B. SKELOS, J.P., PLUMMER E. LOTT, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern and Robert H. King of counsel), for appellant.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated December 9, 2011, which denied, without prejudice, its unopposed motion for the appointment of a referee to compute the amounts due and owing to it, and for related relief.

ORDERED that the order is affirmed, without costs or disbursements.

After the defendant mortgage debtor, Rosita Toro (hereinafter the debtor), defaulted in appearing in this foreclosure action, the plaintiff moved for the appointment of a referee to compute the amounts due and owing to it, and for related relief. The debtor did not oppose the plaintiff's motion.

The Supreme Court denied the plaintiff's motion, without prejudice, on the ground that the plaintiff's papers contained an acknowledgment of the assignment of the note and mortgage by an out-of-state notary, and an affidavit attesting to the debtor's default in repaying the mortgage loan that was notarized by an out-of-state notary, both without certificates of conformity. The plaintiff appeals.

It appears from this record that the plaintiff was the holder of the mortgage and note. In any event, by failing to appear in the action, the debtor waived the defense of lack of standing (see HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 817, 962 N.Y.S.2d 301). However, the affidavit attesting to the debtor's default in repaying the mortgage loan did not comply with CPLR 2309(c). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying relief to the movant without prejudice.

In view of the foregoing, we affirm the order appealed from.

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