Markland has opposed the motion with an affirmation of her attorney and four annexed exhibits labeled A through D. Exhibit G are described as copies of Truth in Lending documents pertaining to this case. Exhibit C are affidavits of service of the commencement papers. Exhibit B is a notice of default and a notice pursuant to RPAPL 1304. Exhibit A is a copy of the summons, complaint, notice of pendency, the note, an allonge, a mortgage, and an assignment of the mortgage. Plaintiff's motion papers consists of a memorandum of law, an affirmation of its counsel, an affidavit of its assistant treasurer, Maryann Monteserrato, a proposed order of reference and seven annexed exhibits labeled A through G. The tenth is that Markland is about to enter into a forbearance, modification or repayment plan/agreement. The ninth is that plaintiff violated United States and New York banking and housing laws governing mortgage loans, including but not limited to the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA). The eighth is that plaintiff has failed to comply with United States and New York law governing the commencement and prosecution of foreclosure actions. The seventh is that Markland does not owe the amounts claimed. The sixth is that the default interest rate is usurious and unconscionable. The fifth is that the action is barred by the applicable statute of limitations. The fourth is that plaintiff has acted in bad faith by unreasonably rejecting tender of monthly mortgage payments. The third is that plaintiff's complaint fails to allege facts sufficient to state a cause of action upon which relief may be granted. The second is that the court lacks personal jurisdiction over Markland due to improper service. The first affirmative defense is that the complaint fails to state a cause of action. Markland interposed an answer containing general denials and ten affirmative defenses. Markland defaulted under the terms of the mortgage and note by failing to make the payment which became due on or on any month thereafter. In conjunction with the mortgage, Markland signed an adjustable rate note in favor of plaintiff, requiring initial monthly payments in the amount of $3807.25 commencing on February 1, 2008. to secure a loan in the amount of $360,000.00 towards her purchase of the subject property. On December 11, 2007, Markland executed a mortgage in favor of plaintiff Emigrant Mortgage Company, Inc. The complaint alleges the following salient facts. By answer dated July 6, 2010, defendant Markland joined issue. On plaintiff Emigrant Mortgage Company, Inc., commenced this action to foreclose a mortgage encumbering the property at 653 East 79th Street in Brooklyn (hereinafter the subject property) by filing a summons and complaint and a notice of pendency with the Kings County Clerk's office. has moved for an order: (1) granting summary judgment in its favor as against defendant Melicia Markland (Markland) pursuant to CPLR 3212 (2) striking Markland's affirmative defenses (3) substituting Emigrant Savings Bank - Manhattan (hereinafter ESB) as named plaintiff (4) substituting Tanya Waters, George Smith and David Thompson in place of "John Doe No.1" through "John Doe #3" (5) striking the remaining "John Doe" defendants and amending the caption to reflect the substitutions (6) granting a default judgment against the non-appearing defendants pursuant to CPLR 3215 and (7) appointing a referee to compute pursuant to RPAPL 1321. Melicia Markland n/k/a MELICIA MARLAND JONES, et al., Defendants.īy notice of motion filed on April 9, 2012, under motion sequence number one plaintiff Emigrant Mortgage Company, Inc. This opinion is uncorrected and will not be published in the printed Official Reports.Įmigrant Mortgage Company, Inc., Plaintiff, Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
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