FILED: KINGS COUNTY CLERK 03/04/2024 05:44 PM INDEX NO.

11234/2009
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 03/04/2024

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE Index No.: 11234/2009
CERTIFICATE HOLDERS SOUNDVIEW HOME LOAN
TRUST 2007-OPT1, ASSET-BACKED CERTIFICATES,
SERIES 2007-OPT1,

Plaintiff,

- against -

WILLIAM CARRINGTON; “JOHN DOE” and “JANE

DOE” said names being fictitious, it being the intention of
Plaintiff to designate any and all occupants of premises
being foreclosed herein,

Defendants.

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF’S

CROSS-MOTION FOR SUMMARY JUDGMENT (MOT. SEQ. NO. 11)

HINSHAW & CULBERTSON LLP

800 Third Avenue, 13th Floor
New York, NY 10022
Tel. (212) 471-6200
Fax (212) 935-1166

On the Brief: Schuyler B. Kraus

Ronald H. Park

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

PRELIMINARY STATEMENT .................................................................................................... 1

ARGUMENT .................................................................................................................................. 3

I. DEFENDANT’S PROPOSED DEFENSES ALL CLEARLY FAIL ..................... 3

A. Plaintiff’s Cross-MSJ Exhibits in Support of its PHH Aff. (Exs. E, F,

G, H) Were Timely Resubmitted ................................................................ 3

B. Plaintiff Fully Complied With Mailing of the Pre-Foreclosure

Procedures ................................................................................................... 4

C. Plaintiff Attested to Note Possession in the PHH Aff. and Established

its Standing.................................................................................................. 5

i. The PHH Aff. Laid a Proper Foundation Based Upon Personal

Knowledge ...................................................................................... 6

ii. The Consolidated Adjustable Rate Note is Authentic .................... 9

D. The Applicable Statute of Limitations Did Not Expire and, Therefore,

the Foreclosure Abuse Prevention Act (“FAPA”) Does Not Apply ......... 10

E. Defendant’s Remaining Claims and Defenses are Without Merit ............ 12

CONCLUSION ............................................................................................................................. 12

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TABLE OF AUTHORITIES

Page(s)

Cases

21st Mtge. Corp. v. Palazzatto,

164 A.D.3d 1293 [2d Dept. 2018] ...........................................................................................10

Advanced Remodeling of Long Is., Inc. v. Monahan,

175 A.D.3d 1361 [2d Dept. 2019] .............................................................................................3

Aurora Loan Servs., LLC v Taylor,

25 N.Y.3d 355 [2015] ................................................................................................................6

Bank of N.Y. Mellon v. Alli,

175 A.D.3d 1472 [2d Dept. 2019] ...........................................................................................11

Bank of NY Mellon v Gales,

116 A.D.3d 723 [2d Dept. 2014] ...............................................................................................6

Bank of NY Mellon v Gordon,

171 A.D.3d 197 [2d Dept. 2019] ...............................................................................................9

Canzona v. Atanasio,
118 A.D.3d 841 [2d Dept. 2014] .............................................................................................12

Charter One Bank, FSB v Leone,

45 A.D.3d 958 [3d Dept. 2007] .................................................................................................7

CitiMortgage, Inc. v Rosenthal,

88 A.D.3d 759 [2d Dept 2011] ..................................................................................................6

Deutsche Bank Natl. Trust Co. v Whalen,

107 AD3d 931 [2d Dept. 2013] .................................................................................................6

FC Notes SVC, LLC v. United Gen. Tit. Ins. Co.,

146 A.D.3d 935 [2d Dept. 2017] .............................................................................................11

Ferri v. Ferri,
71 A.D.3d 949 [2d Dept. 2010] ...............................................................................................10

Gelaj v. Gelaj,
164 A.D.3d 878 [2d Dept. 2018] .............................................................................................10

Matter of Harleysville Ins. Co. v Rosario,

17 A.D.3d 677 [2d Dept. 2005] ...............................................................................................11

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Hoormann v Climax Cycle Co.,

9 A.D.579 [1st Dept. 1896]........................................................................................................7

Hosp. for Joint Diseases v ELRAC, Inc.,

11 A.D.3d 432 [2d Dept. 2004] .................................................................................................7

HSBC Bank USA, N.A. v. Ozcan,

154 A.D.3d 822 [2d Dept. 2017] ...............................................................................................4

HSBC Bank USA, N.A. v Sage,

112 A.D.3d 1126 [3d Dept. 2013] .............................................................................................7

Kashipour v Wilmington Sav. Fund Socy., FSB,

144 AD3d 985 [2d Dept. 2016] ...............................................................................................11

MidFirst Bank v. Ajala,

146 A.D.3d 875 [2d Dept. 2017] .............................................................................................10

Matter of Moorman v Meadow Park Rehabilitation & Health Care Ctr., LLC,
57 A.D.3d 788 [2d Dept. 2008] ...............................................................................................10

OneWest Bank FSB v Carey,

104 A.D.3d 444 [1st Dept 2013]................................................................................................6

Pemberton v. Montoya,
2022 N.Y. Misc. LEXIS 22541 [Sup. Ct. Qns. Cnty. 2022]......................................................4

People v Kennedy,
68 NY2d 569 [1986] ..............................................................................................................8, 9

South Point, Inc. v. Rana,

139 A.D.3d 935 [2d Dept. 2016] .............................................................................................10

Matter of TIG Ins. Co. v Pellegrini,

258 AD2d 658 [2d Dept. 1999] ...............................................................................................11

Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C.,

41 A.D.3d 584 [2d Dept. 2007] ...............................................................................................12

U.S. Bank N.A. v 22 S. Madison, LLC,

170 A.D.3d 772 [2d Dept. 2019] ...............................................................................................9

Wells Fargo Bank, N.A. v Tricario,

180 A.D.3d 848 [2d Dept 2020] ................................................................................................5

Wilmington Trust, N.A. v Southport, LLC,

2023 NY Slip Op 33808[U] [Sup Ct, NY County 2023]...........................................................6

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Statutes

FAPA .......................................................................................................................................10, 12

Foreclosure Abuse Prevention Act ................................................................................................10

RPAPL 1301(3) .............................................................................................................................12

RPAPL 1304 ............................................................................................................................2, 4, 5

RPAPL 1304 90-day ........................................................................................................................1

RPAPL 1501(4) ...............................................................................................................................2

State Foreclosure Abuse Prevention Act .........................................................................................2

Other Authorities

CPLR 213(4) ..............................................................................................................................2, 11

CPLR 3126.....................................................................................................................................12

CPLR 3211(e) ..................................................................................................................................1

CPLR 4518 (a) .............................................................................................................................7, 8

Rules §130-1.1 ...............................................................................................................................12

Wall St. Mtge. Bankers, Ltd .............................................................................................................4

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INTRODUCTION

Plaintiff, Wells Fargo Bank, N.A., as Trustee for the Certificate Holders Soundview Home

Loan Trust 2007-OPT1, Asset-Backed Certificates, Series 2007-OPT1 (“Plaintiff”), respectfully

submits this reply memorandum of law in further support of Plaintiff’s cross-motion for summary

judgment, order of reference, and ancillary relief (Mot. Seq. No. 11) (the “Cross-MSJ”). For

reasons more fully set forth below, Plaintiff’s Cross-MSJ should be granted in its entirety.

PRELIMINARY STATEMENT

Plaintiff is entitled to summary judgment against defendant, William Carrington (the

“Defendant”), as it has clearly established its prima facie case, specifically the existence of and

Defendant’s execution of the subject note and mortgage, and the default occurring thereunder.

Defendant’s present motion to dismiss (Mot. Seq. No. 10) (the “MTD”), on the other hand, is

procedurally improper as Defendant has previously raised the claims outlined in the present MTD

in his prior Initial Cross-MTD 1 (see Park Aff., ¶ 10, Ex. 7; NYSCEF Doc. Nos. 16, 23) in

opposition to Plaintiff’s Initial MSJ, which the Court denied (see Park Aff., ¶ 11, Ex. 8; NYSCEF

Doc. Nos. 16, 24). Pursuant to CPLR 3211(e), no more than one such motion shall be permitted

for any objection or defense based upon a ground set forth in paragraph three of subdivision (a)

(i.e., standing). For this reason alone, Defendant’s MTD should be denied.

Nevertheless, Defendant continues to present various arguments raising issues that were

previously judicially determined by this Court. For example, Defendant raises a single unsupported

challenge to the RPAPL 1304 90-day notice (the “90-Day Notice”) incorrectly asserting that the

subject 90-Day Notice was not mailed at least ninety days before the loan servicer commenced the

foreclosure action and that there is no proof of service. However, Defendant fails to establish that

1
Each term defined in the present Reply Memorandum of Law shall have the meaning assigned thereto in Plaintiff’s
initial Memorandum of Law in Support of its present Cross-MSJ (Mot. Seq. No. 11). See NYSCEF Doc. No. 51.

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the subject loan is a “home loan” within the meaning of RPAPL 1304. Further, the affidavits of

service in this action confirm that the Subject Property is occupied by tenants. As such, Defendant

fails to establish that Plaintiff was required to mail a 90-Day Notice and the basis of Defendant’s

MTD fails.

Defendant also claims that the business records introduced through the PHH Aff. are

hearsay because the affiant is not an employee of Wells Fargo, NA as Trustee. However, Defendant

completely misapprehends the law and facts. It is well settled that the testimony from an employee

of a foreclosing plaintiff’s loan servicer properly supports a summary judgment motion. Further,

Richard Schwiner, a Senior Loan Analyst for PHH, testifies that based upon a review of PHH’s

business records—for which a proper foundation is laid—Plaintiff was in possession of the Note

up to and through the commencement of this action. (NYSCEF Doc. No. 34). Moreover, the

business records were submitted in support of Mr. Schwiner’s testimony. As such, Plaintiff has

established its standing.

Lastly, Defendant’s Reply in opposition to Plaintiff’s Cross-MSJ and in further support of

his MTD (NYSCEF Doc. No. 55) also improperly raises several unsupported challenges to the

statute of limitations pursuant to CPLR 213(4), the New York State Foreclosure Abuse Prevention

Act (“FAPA”), and RPAPL 1501(4), incorrectly asserting (for the first time in this entire action)

that the statute of limitations has run because it has been over six years since the commencement

of the instant action. In asserting this statute of limitations claim, Defendant misapplies the law.

First, Defendant waived the affirmative defense of statute of limitations by not asserting it in his

Answer. (See NYSCEF Doc. No. 19). Even if Defendant was able to raise the issue of statute of

limitations (which he cannot), the present action was timely commenced within a year after the

commencement of the Prior Action in 2008, and remains pending. (See generally Park Aff.,

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Procedural History; NYSCEF Doc. No. 16). Therefore, as the matter is still ongoing, the statute of

limitations has not expired and the instant action is simply not time-barred. As such, this argument

should be rejected by this Court.

As there are no issues of material fact, Plaintiff’s Cross-MSJ should be granted and

Defendant’s MTD should be denied, in its entirety.

ARGUMENT

I. DEFENDANT’S PROPOSED DEFENSES ALL CLEARLY FAIL

A. Plaintiff’s Cross-MSJ Exhibits in Support of its PHH Aff. (Exs. E, F,

G, H) Were Timely Resubmitted

As an initial matter, upon filing its Cross-MSJ on February 27, 2024, Plaintiff’s counsel

inadvertently misfiled PHH Aff. exhibits E, F, G, H (NYSCEF Doc. Nos. 39, 40, 41, 42,

respectively) with incorrect documents due to an inadvertent clerical error. (See Park Reply Aff. ¶

4). 2 However, upon discovering this error, Plaintiff’s counsel immediately refiled the correct

corresponding exhibits, under NYSCEF Doc. Nos. 56 (Ex. E), 57 (Ex. F), 58 (Ex. G), 59 (Ex. H).

(See Park Reply Aff. ¶ 5). Moreover, Defendant was mailed a paper copy of the Cross-MSJ, which

included the correct exhibits, that was delivered prior to filing his initial opposition to the Cross-

MSJ (NYSCEF Doc. No. 55). (See Park Reply Aff. ¶ 7, Ex. A). Indeed, Defendant does not claim

being prejudiced by this ministerial error. 3 (See NYSCEF Doc. Nos. 56 (Ex. E), 57 (Ex. F), 58

(Ex. G), 59 (Ex. H) as a part of the original record for Plaintiff’s Cross-MSJ; Park Reply Aff. ¶ 6;

see also Advanced Remodeling of Long Is., Inc. v. Monahan, 175 A.D.3d 1361, 1362 [2d Dept.

2019] (isolated incident of law office failure deemed reasonable excuse and plaintiffs were not

2
The Park Reply Aff. refers to the Affirmation of Ronald H. Park, dated March 4, 2024, and filed contemporaneously
with Plaintiff’s Reply in further support of its Cross-MSJ.
3
Defendant responded to the refiled documents. (See NYSCEF Doc. Nos. 60-61).

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prejudiced); see also Pemberton v. Montoya, 2022 N.Y. Misc. LEXIS 22541, *5 [Sup. Ct. Qns.

Cnty. 2022] (public policy favors resolution of cases on the merits)).

B. Plaintiff Fully Complied With Mailing of the Pre-Foreclosure

Procedures

Here, the subject loan is not a “home loan” within the meaning of RPAPL 1304. First, the

Subject Property is not Defendant’s principal dwelling as, at the time the subject mortgage

agreement was signed, the “1-4 Family Rider” to the mortgage agreement deleted the occupancy-

by-borrower requirement in the mortgage agreement. (See NYSCEF Doc. No. 57, 1-4 Family

Rider Assignment of Rents (p. 22/61), ¶ F; see also Wall St. Mtge. Bankers, Ltd., 213 A.D.3d at

975 (plaintiff established, prima facie, that the notice requirement of RPAPL 1304 was

inapplicable, as the subject loan was not a “home loan” within the meaning of RPAPL 1304. The

plaintiff demonstrated that the property being foreclosed on was not the defendant’s principal

dwelling by submitting evidence that the defendant did not reside at the property at the time the

mortgage agreement was signed and that the “1-4 Family Rider” to the mortgage agreement deleted

the occupancy-by-borrower requirement in the mortgage agreement); MLB Sub I, LLC, 202

A.D.3d at 1080 (same); HSBC Bank USA, N.A. v. Ozcan, 154 A.D.3d 822, 824-25 [2d Dept. 2017]

(same)). Next, Defendant was served with the initial pleadings at an unrelated property located at

507 Macon Street, Brooklyn, New York 11233 (“507 Macon St.”). (See NYSCEF Doc. No. 18).

Notably, Defendant owns 507 Macon St. (See Park Reply Aff., Ex. ¶ 8, Ex. B). Moreover, the

affidavits of service in this action confirm that the Subject Property is occupied by tenants. (See

NYSCEF Doc. No. 18). Thus, Defendant’s claim that he resides at the Subject Property (see

Affidavit in Support of MTD, ¶ 1) is self-serving and is not supported by additional evidence to

sustain this claim. The undisputed evidence shows that Defendant does not reside at the Subject

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Property and that it was never a principal place of residence. As such, Defendant fails to establish

that Plaintiff was required to mail a 90-Day Notice and the basis of Defendant’s MTD fails.

As the subject loan is not a “home loan” within the meaning of RPAPL 1304, Plaintiff was

not required to send the 90-Day Notice. As a result, Defendant’s assertion that Plaintiff has not

complied with the RPAPL 1304 requirement fails. Conversely, Defendant fails to satisfy his

burden that Plaintiff was required to send notice to Defendant. In any event, Plaintiff properly

mailed the 90-Day Notice to the Subject Property. On a motion seeking to dismiss the complaint

for failure to comply with RPAPL 1304, a defendant “has to meet its burden…of establishing that

the condition precedent was not fulfilled.” Wells Fargo Bank, N.A. v Tricario, 180 A.D.3d 848,

852 [2d Dept 2020]. Here, Defendant cannot sustain this burden because his motion in chief cannot

demonstrate that the subject loan is a “home loan” within the meaning of the statute and, thus, not

subject to the statutory notice requirements.

C. Plaintiff Attested to Note Possession in the PHH Aff. and Established

its Standing

Defendant’s opposition to Plaintiff’s Cross-MSJ fails to raise a single issue of triable fact.

Rather, Defendant makes vague and legally incorrect assertions that the PHH Aff. is allegedly

defective because (1) it is made by an employee of the loan servicer, not Plaintiff, and (2) it is not

based upon personal knowledge. Defendant’s arguments underscore his fundamental

misunderstanding of the proofs required from a foreclosing lender and its attorney-in-fact and

servicer concerning the admissibility of evidence which satisfies Plaintiff’s burden of proof. The

evidence clearly establishes that Plaintiff was (and continues to be) the holder of and in possession

of the Note at the time of commencement of the action.

“In a mortgage foreclosure action, a plaintiff has standing where it is the holder or assignee

of both the subject mortgage and of the underlying note at the time the action is commenced.”

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Bank of NY Mellon v Gales, 116 A.D.3d 723, 723 [2d Dept. 2014] (internal quotations omitted);

see also CitiMortgage, Inc. v Rosenthal, 88 A.D.3d 759 [2d Dept 2011]; OneWest Bank FSB v

Carey, 104 A.D.3d 444 [1st Dept 2013]. As explained by the Court of Appeals, “to have standing,

it is not necessary to have possession of the mortgage at the time the action is commenced. This

conclusion follows from the fact that the note, and not the mortgage, is the dispositive instrument

that conveys standing to foreclose under New York law. In the current case, the note was

transferred to [plaintiff] before the commencement of the foreclosure action - that is what matters.”

Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 361 [2015].

First and foremost, the PHH Aff. attests to possession of the Note. The PHH Aff. clearly

states, “Plaintiff, by itself or through its loan servicer or counsel, has held the original Note in its

continued possession up to and through the time of this action…” and annexes thereto its business

records confirming this information. (See PHH Aff., ¶¶ 8, 10-12, NYSCEF Doc. Nos. 16, 43, 44,

45, 59; see also See Deutsche Bank Natl. Trust Co. v Whalen, 107 A.D.3d 931, 932 [2d Dept.

2013] (The plaintiff also established its standing as the holder of the note and mortgage by physical

delivery prior to commencement of the action with evidence that its custodian received the original

note in October 2005 and received the original mortgage in February 2006 and safeguarded those

original documents in a secure location). Therefore, Plaintiff has properly attested to possession

of the Note.

i. The PHH Aff. Laid a Proper Foundation Based Upon Personal Knowledge

Controlling case law holds that an affidavit from an officer of the loan servicer annexing

the business records upon which the officer relies is sufficient to support summary judgment. See

Wilmington Trust, N.A. v Southport, LLC, 2023 NY Slip Op 33808[U] [Sup Ct, NY County 2023]

(affirming judgment of foreclosure and sale based upon affidavit from loan servicer with annexed

business records, including records of prior servicer that were integrated into servicer’s records,

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based upon attesting to review of those records and personal knowledge of record keeping practices

and procedures).

Moreover, the PHH Aff. is based upon the affiant’s personal knowledge and from his

review of PHH’s business records, as well as his personal knowledge of PHH’s policies and

procedures as to how those business records are created, kept, and maintained. (See PHH Aff., ¶

3-4, NYSCEF Doc. No. 34). Longstanding law in 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.” Hoormann

v Climax Cycle Co., 9 A.D.579, 583 [1st Dept. 1896]. A review of records maintained in the normal

course of business vests an affiant with personal knowledge. See HSBC Bank USA, N.A. v Sage,

112 A.D.3d 1126, 1127 [3d Dept. 2013]; see also Hosp. for Joint Diseases v ELRAC, Inc., 11

A.D.3d 432, 433 [2d Dept. 2004]; Charter One Bank, FSB v Leone, 45 A.D.3d 958, 959 [3d Dept.

2007]; CPLR 4518 (a).

Specifically, the PHH Aff. states that the affiant reviewed PHH’s business records and that

those business records were “made at the time of the act, transaction, occurrence or event reflected

therein, or within a reasonable time thereafter, by or from information provided by a person with

knowledge of the activity reflected in such records. These records are created, kept, and maintained

in the regular course of PHH’s business, and it is the regular course of PHH’s business to make

these records. PHH routinely rely on these records in the ordinary course of its business.” (See

PHH Aff., ¶ 3, NYSCEF Doc. No. 34). Further, the PHH Aff. attests “[t]o the extent that the

business records and/or information related to the subject loan were created by or came from other

entities, including Plaintiff, prior holders and/or prior servicers of the loan, those records were

received by PHH in the ordinary course of business, have been incorporated into and maintained

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as part of own business records in the regular course of its business, and are kept and routinely

relied upon by PHH as a result business practice in the ordinary course of its business.” (See PHH

Aff. fn. 3). As such, the PHH Aff. satisfies the requirements governing the admissibility of

business records.

In Citigroup v Kopelowitz, the Second Department confirmed that there is no requirement

that a plaintiff in a foreclosure action rely upon any particular set of business records to establish

its prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518

(a), and the records themselves evince the facts for which they are relied upon. 147 A.D.3d 1014

[2d Dept 2017].

The seminal case for the business record exception is People v Kennedy, 68 NY2d 569

[1986]. In Kennedy, the Court of Appeals held that the following “concepts appear as the

foundation requirements of CPLR 4518 (a):

• “[F]irst, that the record be made in the regular course of business--essentially, that
it reflect a routine, regularly conducted business activity, and that it be needed and
relied on in the performance of functions of the business.” Kennedy, 68 N.Y.2d at
579.

Here, the PHH Aff. provides that the documents and exhibits attached to the affirmation

are kept, made, and maintained in the course of PHH’s regularly conducted business activities.

(See PHH Aff. ¶¶ 3-4, 10, NYSCEF Doc. No. 34).

• “[S]econd, that it be the regular course of such business to make the record (a
double requirement of regularity) -- essentially, that the record be made pursuant
to established procedures for the routine, habitual, systematic making of such a
record.” Kennedy, 68 N.Y.2d at 579-580.

Again, the PHH Aff. provides that it is the regular practice of PHH to make the documents

and exhibits attached to the affirmation. (See PHH Aff. ¶ 3, NYSCEF Doc. No. 34).

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• “[T]hird, that the record be made at or about the time of the event being recorded-
-essentially, that recollection be fairly accurate and the habit or routine of making
the entries assured.” Kennedy, 68 N.Y.2d at 580.

Here, too, the PHH Aff. unequivocally states that the documents and exhibits attached

thereto are made at or near the time of the event and recorded by persons who are under a business

duty to report and record that information through established procedures for the routine, habitual,

systematic making of such a record. (See PHH Aff. ¶ 3, NYSCEF Doc. No. 34).

The PHH Aff. recites the affiant’s personal knowledge of the servicer’s business practices

and procedures and that he reviewed the records associated with the Carrington Loan. (See PHH

Aff. ¶¶ 3-4, NYSCEF Doc. No. 34). The affiant further avers to personal knowledge of how the

business records were created and maintained in the ordinary course of PHH’s business. (Id.)

Further, the business records relied upon to verify the statements are attached as exhibits to the

affirmation. (See id., generally).

In light of the foregoing, Plaintiff fully met the evidentiary standards required for

submission of the PHH Aff. along with the respective exhibits as established by the Second

Department in Bank of NY Mellon v Gordon, 171 A.D.3d 197 [2d Dept. 2019], and U.S. Bank N.A.

v 22 S. Madison, LLC, 170 A.D.3d 772, 774 [2d Dept. 2019]. As such, Defendant’s unsubstantiated

attacks on the reliability of the PHH Aff. do not present a defense to Plaintiff’s Cross-MSJ, nor do

they create an issue of fact.

ii. The Consolidated Adjustable Rate Note is Authentic

It is undisputed that Defendant executed a Consolidation, Extension, and Modification

Agreement (the “CEMA”) that combined the First Carrington Loan and the GAP Note into a single

lien in the principal sum of $686,700.00 encumbering the Subject Property. (See PHH Aff., ¶ 7,

Ex. G, NYSCEF Doc. Nos. 34, 58). The Consolidated Adjustable Rate Note (“CARN”) secures

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the CEMA. Here, the CARN is a standalone document (see NYSCEF Doc. No. 17) and is also an

exhibit to the CEMA (see NYSCEF Doc. No. 17)—Defendant signed both. When reviewing both

documents, the express terms are identical, providing the same loan obligations. Critically, both

versions of the CARN are a part of the record. Therefore, Defendant’s claims that the CARN is

defective fails.

D. The Applicable Statute of Limitations Did Not Expire and, Therefore,

the Foreclosure Abuse Prevention Act (“FAPA”) Does Not Apply

Defendant’s arguments concerning the statute of limitations, FAPA, res judicata and

collateral estoppel are improperly raised for the first time on reply. Indeed, inasmuch as Defendant

proffers a statute of limitations defense in support of his MTD, it is improper and rejected for two

reasons: (i) Defendant waived this defense having failed to timely raise the defense in his Answer;

and (ii) the argument was improperly raised in his Reply in further support of his MTD. Further,

neither res judicata nor collateral estoppel are viable defenses to this action as there has never been

an adjudication on the merits of Plaintiff’s claim.

Even if there was a colorable claim that the statute of limitations bars the action – which

there is not – Defendant waived such a claim by failing to raise it in his answer or in a timely pre-

answer motion to dismiss. (See NYSCEF Doc. No. 19; see also 21st Mtge. Corp. v. Palazzatto, 164

A.D.3d 1293, 1294 [2d Dept. 2018]; MidFirst Bank v. Ajala, 146 A.D.3d 875 [2d Dept. 2017];

South Point, Inc. v. Rana, 139 A.D.3d 935, 935-36 [2d Dept. 2016]; Ferri v. Ferri, 71 A.D.3d 949,

950 [2d Dept. 2010]. Accordingly, Defendant is, thus, precluded from raising it now.

Further, the purpose of a reply affidavit or affirmation is to respond

to arguments made in opposition to the movant’s motion and not to introduce new arguments or

grounds in support of the relief sought. See Gelaj v. Gelaj, 164 A.D.3d 878, 879 [2d Dept. 2018];

see also Matter of Moorman v Meadow Park Rehabilitation & Health Care Ctr., LLC, 57 A.D.3d

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788 [2d Dept. 2008]; Matter of Harleysville Ins. Co. v Rosario, 17 A.D.3d 677 [2d Dept.

2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [2d Dept. 1999]. Here, Defendant failed

to raise the aforementioned claims in either his Answer or his motion in chief. As such, these

arguments should be rejected as improperly raised.

Even assuming, arguendo, that Defendant was able to raise the issue of statute of

limitations, Defendant’s assertion that the applicable statute of limitations has expired is without

merit since the instant action was timely commenced. Pursuant to CPLR 213(4), the statute of

limitations for a foreclosure action expires six years from the date of acceleration of the debt. See

Bank of N.Y. Mellon v. Alli, 175 A.D.3d 1472, 1473 [2d Dept. 2019]. It is well settled that where

“once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins

to run on the entire debt.” Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 986 [2d

Dept. 2016], quoting EMC Mtge. Corp. v Patella, 279 AD2d 604, 605 [2d Dept. 2001]). Here,

Defendant has failed to demonstrate that Plaintiff’s present action is untimely. The present action

was timely commenced and remains pending. (See generally Park Aff., Procedural History;

NYSCEF Doc. No. 16). As the matter is still ongoing, the statute of limitations has not expired,

and the instant action is simply not time-barred. Therefore, this argument must be rejected by this

Court.

Lastly, the doctrines of res judicata and collateral estoppel do not apply to the instant

matter. Contrary to Defendant’s erroneous assertion, the Prior Action was voluntarily discontinued

and not dismissed. (See Park Aff., ¶ 19, Ex. 15; NYSCEF Doc. Nos. 16, 33). Therefore, the

discontinuance of the Prior Action did not involve a determination on the merits. See FC Notes

SVC, LLC v. United Gen. Tit. Ins. Co., 146 A.D.3d 935, 936 [2d Dept. 2017] (where a dismissal

does not involve a determination on the merits, the doctrine of res judicata does not apply); see

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also Canzona v. Atanasio, 118 A.D.3d 841, 842 [2d Dept. 2014] (same); Tortura v. Sullivan

Papain Block McGrath & Cannavo, P.C., 41 A.D.3d 584, 585 [2d Dept. 2007] (same). As such,

this new argument is unavailing.

For the reasons set forth above, Defendant cannot assert the claims that the statute of

limitations has expired or that FAPA applies to the instant action.

E. Defendant’s Remaining Claims and Defenses are Without Merit

Contrary to Defendant’s assertion, Plaintiff opposed Defendant’s remaining contentions

regarding the procedural history of the case. (See NYSCEF Doc. No. 51). As previously submitted

in Plaintiff’s motion in chief, the responses to these claims were discussed in greater detail in the

Memorandum of Law in support of Plaintiff’s Cross-MSJ (i.e., RPAPL 1301(3), CPLR 3126, and

NYCRR Rules §130-1.1). Therefore, Plaintiff respectfully directs the Court to review its

Memorandum of Law in support of its Cross-MSJ. (See NYSCEF Doc. No. 51).

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests an Order granting Plaintiff

summary judgment and related relief, denying Defendant’s application for dismissal, and granting

such other than further relief in favor of Plaintiff as this Court deems just, proper, and equitable.

Dated: New York, New York

March 4, 2024
HINSHAW & CULBERTSON LLP
Attorneys for Plaintiff,
Wells Fargo Bank, N.A., as Trustee for the
Certificate Holders Soundview Home Loan
Trust 2007-OPT1, Asset-Backed
Certificates, Series 2007-OPT1

By: /s/ Ronald H. Park

Schuyler B. Kraus, Esq.
Ronald H. Park, Esq.
800 Third Avenue, 13th Floor
New York, New York 10022
Tel: (212) 471-6200

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[email protected]
[email protected]

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CERTIFICATE OF COMPLIANCE WITH

22 NYCRR 202.8-b REGARDING WORD COUNT

I hereby certify that, pursuant to 22 NYCRR 202.8-b, the foregoing memorandum of law

was prepared on a computer using Microsoft Word. The total number of words in the memorandum

of law, exclusive of the caption, table of contents, table of authorities, and signature block is 3,774.

Dated: New York, New York

March 4, 2024
HINSHAW & CULBERTSON LLP
Attorneys for Plaintiff,
Wells Fargo Bank, N.A., as Trustee for the
Certificate Holders Soundview Home Loan
Trust 2007-OPT1, Asset-Backed
Certificates, Series 2007-OPT1

By: /s/ Ronald H. Park

Ronald H. Park, Esq.
800 Third Avenue, 13th Floor
New York, New York 10022
Tel: (212) 471-6200
[email protected]

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