This is a motion by the plaintiff Countrywide Home Loans, Inc., for an order confirming the referee's report and granting a judgment of foreclosure and sale. The defendant Jackie Streeter Caldwell a/k/a Jackie Streeters, sued herein as an Heir of the Estate of Roland H. Caldwell and Mrs. Caldwell, cross-moves to vacate the default judgment and to dismiss the complaint.

Plaintiff commenced this action by filing a copy of the summons and complaint on January 18, 2008. Plaintiff seeks to foreclose on a mortgage on the subject real property known as 222-18 109th Avenue, Queens Village, in Queens County, New York, to secure repayment of a note, evidencing a loan in the original principal amount of $149,800 with interest, extended to Roland H. Caldwell, as the record owner of the subject premises, by plaintiff Countrywide Home Loans.

Plaintiff alleges that it is the holder of the mortgage pursuant to an assignment. Plaintiff also alleges that Roland H. Caldwell defaulted under the terms of the mortgage and note by failing to make the monthly installment payment due on September 1, 2007, and, as a consequence, it elected to accelerate the entire mortgage debt.

On November 25, 2008, the Court appointed Bernadette M. Crowley, Esq., as Guardian Ad Litem and Military Attorney to represent all unknown parties, including the Heirs of the Estate of Roland H. Caldwell and directed service pursuant to CPLR 308(5) by publication. The plaintiff published the Supplemental Summons and Notice as required to effectuate service upon the unknown Heirs of the Estate of Roland H. Caldwell pursuant to that order.

On April 14, 2009, this Court granted the plaintiff an Order of Reference appointing Matthew S. Vishnick, Esq., as Referee to compute the amount due to the plaintiff. The referee determined that as of May 1, 2009, the plaintiff is owed the sum of $169,304.34 with interest. The plaintiff now moves to confirm the referee's report and for an order of judgment and foreclosure. The defendant Mrs. Caldwell has opposed this motion and cross-moves to vacate the default and dismiss the complaint.

First, the defendant's argument that this matter must be stayed until the appointment of a receiver is without merit. There is no need to join the estate of the now-deceased mortgagor as it appears he died intestate and the complaint does not seek a deficiency (Financial Freedom Senior Funding Corp. v Rose, 64 AD3d 539 [2nd Dept. 2009]; Countrywide Home Loans, Inc. v Keys, [*2]27 AD3d 247 [1st Dept.], lv. to appeal denied, 7 NY3d 702 [2006]; Winter v Kram, 3 AD2d 175 [2nd Dept. 1957]).

Second, insofar as defendant Mrs. Caldwell claims that the Court lacks personal jurisdiction over her as a result of alleged improper service, plaintiff offers an affidavit of service dated January 28, 2008, of a licensed process server. The affidavit indicates service of process was made upon defendant Mrs. Caldwell on January 24, 2008, by in-hand delivery of a copy of the summons and complaint to Mrs. Caldwell at the subject premises. This affidavit constitutes prima facie proof of proper service upon defendant Mrs. Caldwell pursuant to CPLR 308(1) (see, Skyline Agency, Inc. v Ambrose Coppotelli, Inc., 117 AD2d 135, 139 [2nd Dept. 1986]).

Although defendant Mrs. Caldwell asserts she had no knowledge of the commencement of the foreclosure action, she has offered nothing to rebut or dispute the veracity or contents of the affidavit of service (see, Manhattan Sav. Bank v Kohen, 231 AD2d 499, 500 [2nd Dept. 1996], lv. to appeal denied, 91 NY2d 802 [1997]). While the defendant Mrs. Caldwell asserts that there is a discrepancy in the process server's description of her, the defendant, however, does not deny that she was served. Plaintiff, therefore, has established personal jurisdiction over the defendant Mrs. Caldwell.

Additionally, service was made on all Heirs of the Estate of Roland H. Caldwell by publication pursuant to this Court's order. The conclusory argument by the defendant Mrs. Caldwell that this was improper is without merit. The defendant did not come forward with any proof to support her contention that this Court made an improper determination that the plaintiff's evidence to locate the heirs for service was sufficient to support due diligence. Therefore, this Court's order that directed service by publication pursuant to CPLR 308(5) was proper.

To the extent the defendant Mrs. Caldwell seeks to vacate her default in appearing or answering the complaint pursuant to CPLR 5015(a)(1), on the ground she did not receive timely notice of the action, such excuse must be rejected since she has offered nothing to rebut the contents of the affidavit of service of process (see, Puco v DeFeo, 296 AD2d 571 [2nd Dept. 2002]; NYCTL 1997-1 Trust v Nillas, 288 AD2d 279 [2nd Dept. 2001]).

Moreover, defendant Mrs. Caldwell has failed to present any meritorious defense to the action (see, CPLR 5015[a][1]). All of defendant's proposed affirmative defenses are without merit. Plaintiff was not required to provide any defendant with the notices set forth in RPAPL sections 1302, 1303, and 1304, insofar as those statutes' applicability became effective after the commencement of this action (see L 2008, c 472, §§ 1 & 17, effective August 5, 2008; L 2008, c 472, § 2, effective September 1, 2008). Similarly, CPLR 3408 did not become effective until after the commencement of this action.

Furthermore, those notices are not applicable to this case as the defendant Mrs. Caldwell is not the borrower, and the plaintiff has established that the loan is not a subprime, high cost, or non-traditional loan that would require the notice. The defendant's other proposed affirmative defenses are all without merit, including allegations of: a breach of the covenant of dealing in good faith; failure to state of a cause of action; defective complaint because copies mailed to the defendant failed to state and provide the defendant with the actual date of filing; failure to name necessary parties; and unclean hands.

To the extent that the cross motion by the defendant Mrs. Caldwell sought to dismiss the complaint pursuant to CPLR 3211, it must be denied as it is untimely (see, CPLR 3211[e]). [*3]

The motion by the plaintiff to confirm the referee's report and for an order of judgment and foreclosure is granted.

The cross motion by the defendant Mrs. Caldwell to vacate the default judgment and to dismiss the complaint is denied.

Settle Order.

J.S.C.

Appearances of Counsel:

For plaintiff: Berkman, Henoch, Peterson & Peddy, P.C., by Gerry Careccia Leonti and Jonathan M. Cohen, Esqs., 100 Garden City Plaza, Garden City, NY 11530

For Jackie Streeter Caldwell, a/k/a Jackie Streeters, sued herein as "Heirs of the Estate of Roland H. Caldwell" and "Mrs. Caldwell": Ewan D. Anderson, Esq., 200-31 Linden Blvd., Saint Albans, NY 11412