FILED: RICHMOND COUNTY CLERK 12/20/ :53 PM INDEX NO /2015 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 12/20/2017

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1 STATE OF NEW YORK SUPREME COURT COUNTY OF RICHMOND Plaintif1[s), AFFIRMATION IN -vs- OPPOSITION TO DEFENDANT'S MOTION AND IN DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR. FIRST FRANKLIN MORTGAGE LOAN TRUST 2006-FFl 6, ASSET- BACKED CERTIFICATES, SERIES 2006-FF16 Index No.: /2015 CROSS- RElMUNDO REYES, if living, and if he be dead, his respective heirs-at-law, FURTHER SUPPORT OF next of kin, distributees, executors, administrators, trustees, devisees, legatees, assignees, lienors, creditors and successors in interest, and generally all persons having or claiming under, by or through said who may be deceased, by purchase, inheritance, lien or otherwise, any right, title or interest in and to the premises, GIOVANNI REYES, if living, and if he be dead, his respective heirs-at-law, next of kin, distributees, executors, administrators, trustees, devisees, legatees, assignees, lienors, creditors and successors in interest, and generally all persons having or claiming under, by or through said who may be deceased, by purchase, inheritance, lien or otherwise, any right, title or interest in and to the premises, ANY UNKNOWN HEIRS TO THE ESTATE OF AMELIA REYES, NEXT OF KIN, DEVISEES, LEGATEES, DISTRIBUTEES, GRANTEES, ASSIGNEES, CREDITORS, LIENORS, TRUSTEES, EXECUTORS, ADMINISTRATORS OR SUCCESSORS IN INTEREST, AS WELL AS THE RESPECTIVE HEIRS AT LAW, NEXT OF KIN, DEVISEES, LEGATEES, DISTRIBUTEES, GRANTEES, ASSIGNEES, LIENORS, TRUSTEES, EXECUTORS, ADMINISTRATORS OR SUCCESSORS IN INTEREST OF THE AFORESAID CLASSES OF PERSONS, IF THEY OR ANY OF THEM BE DEAD, ALL OF WHOM AND WHOSE NAMES AND PLAINTIFF'S PLACES OF RESIDENCE ARE UNKNOWN TO THE PLAINTIFF; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD;. NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; UNITED STATES OF AMERICA/lRS; PEOPLE OF THE STATE OF NEW YORK; DOE" DOE," and "JOHN and "MARY MOTION Defendants. Richard N. Franco, Esq., an attorney at law, duly admitted to practice before the Courts of the State of New York, hereby affirms pursuant to CPLR 2106 that: 1. I am an associate of Davidson Fink, the attorneys of record for Plaintiff in this action, and as such, I am fully familiar with the facts and circumstances underlying this action. 1 of 9

2 2. Your deponent submits the instant affirmation to address the opposition and Cross-Motion interposed on behalf of "unknown heirs of Reimundo Reyes$ereinafter "Defendants". 3. For the reasons set forth infra, Plaintiff's Motion must be granted as a matter of law and fact. PLAINTIFF HAS DEMONSTRATED ITS PRIMA FACIE ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW 4. As set forth in the complaint, and in Plaintiff's pending motion, the instant mortgage foreclosure action was commenced due to the undisputed default under the terms of a certain note, which the subject mortgage secures. 5. In its pending motion, Plaintiff has demonstrated its prima facie entitlement to judgment on its mortgage foreclosure claim, as a matter of law, "by producing the mortgage, the unpaid note, and evidence of default". U.S. Bank Natl. Assn. v. Denaro, 98 A.D.3d 964, 950 N.Y.S.2d 581 (2d Dept. 2012); see also HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815 (2d O' Dept. 2013); Wash. Mut. Bank v. O'Connor, 63 A.D.3d 832, 880 N.Y.S.2d 696 (2d Dept. 2009); Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 842 N.Y.S.2d 1 (1st Dept. 2007); Campaign v. Barba. 23 A.D.3d 327, 805 N.Y.S.2d 86 (2d Dept. 2005); Charter One Bank, FSB v. Houston, 300 A.D.2d 429, 751 N.Y.S.2d 573 (2d Dept. 2002). 6. As a result, it now became incumbent upon Defendant "to produce evidentiary proof in admissible form sufficient to require a trial of [her] defenses". Wash. Mut. Bank v. O' O'Connor, supra. 7. In order to defeat Plaintiff's prayer for summary judgment, Defendant must show the existence of an issue of fact, where "the issue must be shown to be real, not feigned since a 2 of 9

3 sham or frivolous issue will not preclude summary relief". Kornfçld v. NRX Technologies, Inc., 93 A.D.2d 772, 773 (1st Dept. 1983) af d 62 N.Y.2d 686 (1984). 8. "It is well settled that the shadowy semblance of an issue or bald conclusory assertions, even if believable, are not enough to defeat a motion for summary judgment". Orange County-Poughkeepsie Ltd. Partnership v. Bonte, 37 A.D.3d 684, 830 N.Y.S.2d 571 (2d Dept. 2007), quoting Spodek v, Park Prop.. Dev. Assocs., 263 A.D.2d 478 (2d Dept. 1999); see also Stagg Tool 4 Die Corp.. v. Wetsman, 12 A.D.2d 99, 208 N.Y.S.2d 585 (Ist Dept. 1960), af d 10 N.Y. 2d 741 (1961). 9. As set forth fully below, Defendants' default on the subject loan is undisputed and Defendants' opposition fails to raise any genuine issues of material fact to defeat Plaintiff's motion for summary judgment. PLAINTIFF HAS STANDING ON THE BASIS OF ITS POSSESSION OF THE INDORSED NOTE 10. Defendants assail Plaintiff's standing, however, they fail to recognize the relevant precedent for measuring a Plaintiff's standing in a foreclosure action. 11. Defendants, while recognizing that, in the Second Department, possession of the indorsed Note at commencement proves standing, fails to recognize that the act of attaching the indorsed Note to the Complaint at commencement definitively proves possession of the indorsed Note. 12. It is well established by the Second Department that a Plaintiff in a foreclosure action demonstrates its possession of the indorsed Note at the time an action commenced by attaching a copy of same to its Complaint. Nationstar v. Catizone, 127 A.D.3d 1151; 9 N.Y.S.3d 315 (2d Dept. 2015). 3 of 9

4 13. The Second Department holding in Catizone has been repeatedly reaffirmed in subsequent decisions on standing in foreclosure actions. Counsel's assertions regarding the lack of a date on the indorsement are dispelled by JPMorgan Chase Bank, N.A. v. Roseman, 137 (" A.D.3d 1222, 29 N.Y.S.3d 380 (2d Dept. 2016) ("In this case, the face of the note indicated that it was endorsed to the plaintiff. Although the endorsement was undated, a copy of the note was annexed to the complaint, establishing prima facie that the plaintiff had standing"); citing Nationstar Mtge., LLC v. Catizone, 127 A.D.3d 1151, 9 N.Y.S.3d 315 (2d Dept. 2015) (" ("Contrary to the appellant's contention, the plaintiff established its standing as the holder of the note and mortgage by demonstrating that the note was in its possession and the mortgage had been assigned to it prior to the commencement of the action, as evidenced by its attachment of the indorsed note, the mortgage, and the mortgage assignment to the summons and complaint at the time the action was commenced"); U.SÌ Bank N.A. v. Guy, 125 A.D.3d 845, 5 N.Y.S.3d 116 (" (2d Dept. 2015) ("Here, by producing the underlying adjustable rate note with an affixed undated allonge endorsed in blank, indicating that the plaintiff was the transferee of the note, the plaintiff made a showing sufficient to deny that branch of Guy's motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against her based on the plaintiffs alleged lack of standing"). 14. Moreover, on August 24, 2016, the Second Department reiterated these holdings by finding that a "homeowner's contention that the vice president's affidavit was insufficient to establish the Bank's standing since it failed to give factual details as to the physical delivery of the note is without merit. An indorsement in blank specifies no particular indorsee and may consist of a mere signature. An instrument payable to order and indorsed in blank becomes 4 of 9

5 payable to bearer and may be negotiated by delivery alone until specially indorsed". JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643 (2d Dept. 2016). 15. In the case at bar, the Court will find that Plaintiff's Complaint likewise exhibited a true copy of the indorsed Note, establishing that Plaintiff was the holder and assignee of the Note and Mortgage on the day this action commenced. (The Court should note that the indorsement is made directly to the Plaintiff. 16. Plaintiff's demonstration of possession of said at the time of commencement (ipso facto proven by attaching the indorsed copy of same to its complaint) suffices, as a matter of law, bgbgd' b' to establish Plaintiff's standing to bring the case at bar..~a.t Aurora v. Taylor, 114 A.D.3d. 627, 629 (2d Dept. 2014), aff'd 25 N.Y.3d 355 (2015); Catizone, supra; Israel, supra: Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 932 (2d Dept. 2013); contra Deutsche Bank Natl. Trust Co. v Haller, 100 A.D.3d 680, (2d Dept. 2012) (Denying summary judgment to the foreclosing plaintiff due to a triable issue of fact regarding standing, as it was "not clear whether the endorsement was effectuated prior to the commencement of this action," because the indorsement "was not included in the copy of the note which was annexed to the plaintiffs complaint" complaint"). 17. Since [P]laintiff established its standing by physical delivery, [the Court] need not address the validity of the... document assigning the mortgage and note". Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 932 (2d Dept. 2013); Israel, supra. 18. Based upon the foregoing, Plaintiff's Motion must be granted in all respects and in its entirety, as a matter of law and fact. 5 of 9

6 PLAINTIFF'S AFFIDAVIT IS SUFFICIENT AND ADMISSIBLE 19. Prior to any discussion of Plaintiff's affidavit, it must first be stressed that Defendant's entire standing argument is premised on the incorrect legal premise that Plaintiff must rely on its affidavit and written assignments to prove standing, as fully set forth above. 20. As for Cynthia Wallace's authority and knowledge of the facts involved in this case to interpose her affidavit on behalf of her company, Specialized Loan Servicing, hereinafter "SLS", as loan servicer and attorney-in-fact for Plaintiff in this action, "[t]he requirement that in an affidavit made by an agent or attorney, the affiant, when swearing to pleadings for his or her principals or clients, disclose his or her knowledge and its sources, does not apply where an officer of a corporation make an affidavit on its behalf." 2 Carmody-Wait 2d 4:37 (2001), citing Robinson v. Ecuador Development Co., 32 Misc. 106, 65 N.Y.S. 427 (Sup 1900); Duryea, Watts 4 Co. v. Raynor, 11 Misc. 294, 32 N.Y.S. 247 (C.P. 1895); Manufacturers' Nat. Bank v. H a_11, 15 N.Y.S. 208 (Gen. Term 1891), aff'd without opinion, 129 N.Y. 663, 30 N.E. 65 (1892). 21. "For the purposes of making the affidavit, the officer is considered a party and is not required to state the source of his or her knowledge any more than an individual party is required to do." 2 Carmody-Wait 2d 4:37 (2001), citing Shaft v. Phoenix Mut. Life Ins. Co., 67 N.Y. 544, 1876 WL (1876); Henry v. Brooklyn Heights R. Co., 43 Misc. 589, 89 N.Y.S. 525 (County Ct. 1904), aff'd without opinion, 97 A.D. 631, 89 N.Y.S (2d Dep't. 1904). 22. Moreover, long-established law in the State of New York holds that "statements in affidavits will be presumed to have been made on personal knowledge, unless * * * it appears affirmatively, or by fair inference, that they could not have been, and were not on such knowledge." Hoorman v. Climax C cle Co., 9 A.D. 579, 41 N.Y.S. 710 (1st Dept. 1896). 6 of 9

7 23. Case law makes clear that a review of records maintained in the normal course of business vests an affiant with personal knowledge, and the Affidavit of Plaintiff's loan servicer testifies to such a familiarity with Plaintiff's records. HSBC Bank USA v Sage, 112 A.D.3d 1126, 1127 (3d Dept. 2013); Hosp.. for Joint Diseases v. ELRAC, Inc., 11 A.D.3d 432, 433 (2d Dept. 2004); HSBC Bank USA v Saldana, 42 Misc. 3d 1218(A), 2014 NY Slip Op 50082(U), 6 (Sup. Ct., Queens Ct. 2014); Kondaur Capital Corp.. v Argyros, 38 Misc. 3d 1230(A), 2013 NY Slip Op 50347(U), 2 (Sup. Ct., Queens Cty. 2013); see Charter One Bank, FSB v. Leone, 45 A.D.3d 958, 959 (3d Dept. 2007); CPLR R 4518(a). 24. Judgment in a foreclosure action is consistently granted where the affidavit of the corporate officer is based upon documentary evidence and records of the plaintiff maintained in the ordinary course of business. Marine Midland Bank v. Embassy East, Inc., 160 A.D.2d 420, (1 Dept. 1990), Wells Fargo Bank, N.A. v. Arias, 121 AD3d 973, 995 NYS2d 118 (2d Dept. 2014). 25. Moreover, although the foregoing establishes personal knowledge, a business entity may admit a business record through a person without personal knowledge of the document, its specific contents or history where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity's files. DeLeon v. Port Authority of N.Y. & N.J., 306 A.D.2d 146, 761 NYS2d55, (1. Dept. 2003), citing First Interstate Credit Alliance, Inc. v. Sokol, 179 AD2d 583, 579 NYS2d 653, (1. Dept. 1992). 26. Finally, Section 4518(a) of the CPLR expressly provides "[t]he Court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is true and accurate representation of such electronic 7 of 9

8 record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility." See CPLR 4518(a). 27. Under the statutory provision authorizing admission of a business record into evidence if the judge finds that it was made in the regular course of business and that it was the regular course of such business to make it at the time of the transaction or event or within a reasonable time thereafter (CPLR 4515), all other circumstances of the making of the record, including lack o f personal knowledge by the maker, may be proved to affects its weight, but not its admissibility.. Chase Manhattan Bank (Nat'l Assoc., Bank Americard Div. Hobbs, 94 Misc.2d 780, 405, NYS2d 967 (1978). The business records exception to the hearsay rule permits the introduction into evidence of any record made in the course of a regularly conducted business provided that it was the regular course of business to make such entry; the primary purpose for the exception is to make admissible a writing or record without the necessity of calling as witnesses all the employees who had a part in making the entry. In re V., 94 Misc.2d 172, 405 N.Y.S.2d 207, 1978 N.Y.Misc. LEXIS 2212 (N.Y. Fam. Ct. 1978), afd, 74 A.D.2d 1008, 1980 N.Y. App. Div. LEXIS (N.Y.App. Div. 1st Dept. 1980), afd, 74 A.D.2d 1008, 1980, N.Y. App. Div. LEXIS (N.Y. App. Div. 15t Dept. 1980). 28. In fact, New York State now recognizes the entity of a "mortgage loan servicer" by statute. The term "mortgage loan servicer" is defined under Banking Law 590 and defines its function as, "receiving any scheduled periodic payments from a borrower pursuant to the terms of any mortgage loan." 8 of 9

9 29. Thus, the ability of a loan servicer to service and maintain records on behalf of a note holder is embedded both in case law and statute. 30. Here, the affidavit clearly satisfies the mandates of the business records exception, in addition to establishing the affiant's personal knowledge of her company's books and records. 31. Defendant proffers no evidence whatsoever to controvert any facts in the affidayit, including the mailing of required notices. 32. "Contrary to [Defendant's] claim, the affidavit from [Plaintiff's loan servicer] was adequately based on a review of the books and records of the company maintained in the ordinary course of business". Sage, supra (internal citation omitted). WHEREFORE, it is respectfully requested that Plaintiff's Motion be granted in all respects and in its entirety; that Defendant's Cross-Motion be denied; and such other and further relief as to the Court may seem just and proper. Dated: December 20, 2017 Richard N. Franco, Esq. Associate Davidson Attorney Fink Attorneys for Plaintiff 28 East Main St., Suite 1700 Rochester, New York (585) of 9

HSBC Bank USA v Jones 2016 NY Slip Op 30296(U) February 9, 2016 Supreme Court, Queens County Docket Number: /14 Judge: Darrell L.

HSBC Bank USA v Jones 2016 NY Slip Op 30296(U) February 9, 2016 Supreme Court, Queens County Docket Number: 706555/14 Judge: Darrell L. Gavrin Cases posted with a "30000" identifier, i.e., 2013 NY Slip