In this foreclosure action commenced on March 25, 2009, plaintiff previously obtained an order of reference dated July 28, 2009, and entered on August 4, 2009. The Referee appointed pursuant to such order, executed his oath, and issued a report dated September 1, 2009, indicating the sum of $486,471.41 was due plaintiff as of August 13, 2009, and that the mortgaged premises should be sold in one parcel. [*2]

Plaintiff subsequently sought to obtain a judgment of foreclosure and sale, but by order dated April 22, 2010, the application was denied with leave to renew following the holding of a conference, or upon evidence that defendants Lopez, the mortgagors, failed to appear for a conference. After defendants Lopez failed to attend the settlement conference held on August 6, 2010, plaintiff renewed its application for leave to enter a judgment of foreclosure and sale, but by order dated November 19, 2010, that application was also denied with leave to renew upon proper papers, including an affirmation by plaintiff's counsel pursuant to the administrative order of the Chief Administrative Judge of the Court dated October 20, 2010, then in effect (see Administrative Order 548/2010).

Plaintiff thereafter moved to confirm the Referee's report of computation, for leave to amend the complaint nunc pro tunc to the time of the commencement of the action to reflect that the amount of the claimed monthly installment payment was $2389.24 and the date of the claimed default was December 1, 2008, for leave to amend the caption to substitute Vanderbilt Mortgage and Finance, Inc. (Vanderbilt) as party plaintiff, and for leave to enter a judgment of foreclosure and sale upon the failure by defendants Lopez to answer the complaint. Defendants Lopez opposed plaintiff's motion, and cross moved to vacate their default and for leave to serve and file a late answer with counterclaims.

By order dated March 12, 2012, those branches of the motion by plaintiff for leave to amend the complaint nunc pro tunc to the time of the commencement of the action, and to confirm the Referee's report were granted. The branch of the motion by plaintiff for leave to amend the caption to substitute Vanderbilt as party plaintiff was denied. The court determined that plaintiff failed to establish Vanderbilt was the holder of the note (at the time of the making of the motion), and thus failed to show it rightfully could pursue or be awarded a judgment of foreclosure and sale.

Defendants Lopez opposed the branch of the motion by plaintiff for leave to enter a judgment of foreclosure and sale, asserting plaintiff had failed to show compliance with RPAPL 1304 as a mandatory condition precedent to suit (see Aurora Loan Services, LLC v Weisblum, 85 AD3d 95 [2011]). The court considered such opposition but concluded that plaintiff had not been required to serve defendants Lopez with a 90-day notice pursuant to RPAPL 1304 because the subject mortgage was not a subprime home loan or high-cost home loan, and did not qualify as a non-traditional home loan, i.e. "a payment option adjustable rate mortgage" (see former RPAPL 1304[5][e]). The court also found that the mortgage was not an "interest only" loan (see former RPAPL 1304[5][e]) because it called for payment of interest only for the first 10 years, and then payment of principal and interest for the next 20 years.

The court, however, determined that the affirmation of Heather C.M. Rogers, Esq., plaintiff's counsel, dated August 11, 2011 (pursuant to Administrative Order 431/2011) was at odds with her affirmation dated June 4, 2011. The court noted the August 11, 2011 affirmation indicated "Jackie Mash," a "representative" of plaintiff, had informed Ms. Rogers on June 21, 2011 that she (Ms. Mash) had reviewed the documents and records relating to the case for factual [*3]accuracy, and confirmed the factual accuracy of the allegations set forth in the complaint (among other things). The court also noted that Ms. Rogers had stated in her June 4, 2011 affirmation that the complaint contained errors as to the date of default and the amount of the monthly payment. As a consequence, the branch of the motion by plaintiff for leave to enter a judgment of foreclosure and sale was denied without prejudice to renewal based upon proper papers, including an affirmation by plaintiff's counsel clarifying the issue, and upon proper service, including service upon defendants Lopez. The cross motion by defendants Lopez to vacate their default in answering and for leave to serve a late answer was denied. The court determined that defendants Lopez failed to demonstrate a reasonable excuse for their failure to timely serve an answer.

Plaintiff moves pursuant to CPLR 3018 to substitute Vanderbilt in place and stead of Mortgage Electronic Registration Systems, Inc. (MERS) as party plaintiff, and leave to amend the caption to reflect such substitution, for leave to enter a judgment of foreclosure and sale, and for leave to appoint a successor referee, and an extra allowance in addition to taxable costs, disbursements and attorneys' fees. Defendants Lopez oppose the motion and cross move pursuant to CPLR 2221 for leave to reargue their opposition to plaintiff's prior motion for leave to enter judgment against them, and upon reargument, to amend the order dated March 12, 2012 to deny such motion based upon the additional grounds of plaintiff's failure to serve a 90-day notice pursuant to RPAPL 1304 and meet the requirements of Administrative Order 431/2011.

The court notes that at the time of the service of plaintiff's instant motion papers, defendants Lopez were represented by counsel. Counsel for defendants Lopez had attached the notice of appearance to earlier opposition and cross motion papers, which were filed with the court, but did not separately serve a notice of appearance, or file one. As a consequence, plaintiff's new attorney failed to serve the motion papers upon the counsel for defendants Lopez, and instead served defendants Lopez directly. Defendants Lopez have failed to demonstrate plaintiff improperly failed to serve the motion papers upon their counsel and served the motion papers upon them directly (see CPLR 2103[b]). In addition, defendants Lopez have made no showing that the failure to serve their counsel, or the service of the papers upon them directly, was intentional or that they were prejudiced thereby. Counsel for defendants Lopez obtained a copy of the motion papers from plaintiff's attorney on July 11, 2012, and responded to the motion on the merits and cross moved for affirmative relief by August 16, 2011, prior to the final submission of the motion on September 13, 2012. Under such circumstances, the court shall entertain plaintiff's motion.

That branch of the motion by plaintiff for leave to amend the caption substituting Vanderbilt for MERS as party plaintiff is granted. According to the affidavit of Jackie Stubblefield, a "Legal Affairs Representative" for Vanderbilt, dated June 27, 2012, Vanderbilt received the note, endorsed in blank, at the time of assignment of the mortgage by MERS to Vanderbilt on April 4, 2011, pursuant to the written assignment dated April 4, 2011 and recorded on May 18, 2011. As a consequence, the substitution of Vanderbilt for plaintiff MERS is appropriate (see CPLR 1008, 1021; Saxon Mortg. Services, Inc. v Coakley, 83 AD3d 1038 [*4][2011], lv to appeal denied 17 NY3d 708 [2011]), and the caption may be amended to reflect such substitution. To the extent defendants Lopez assert that MERS lacked standing to commence the foreclosure action, they waived any such argument by failing to interpose an answer or file a timely pre-answer motion which asserted the defense of standing (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2007]), and have failed to vacate their default in answering (see HSBC Bank, USA v Dammond, 59 AD3d 679 [2009]).

With respect to the cross motion by defendants Lopez, it is noted that they explicitly do not seek to reargue that portion of the prior order dated March 12, 2012, denying their motion to vacate their default in answering and for leave to serve a late answer. Rather, they seek leave to reargue their opposition to that branch of plaintiff's prior motion for leave to enter a default judgment, and upon reargument, to deny such motion on the additional grounds that plaintiff failed to serve them with a RPAPL 1304 notice, and the attorney affirmation filed by plaintiff pursuant to Administrative Order 431/2011 failed to comply with such Administrative Order. According to defendants Lopez, the court misapprehended that the subject mortgage loan was not an "interest only" loan and hence misapprehended that plaintiff did not need to show compliance with former RPAPL 1304 as part of its prima facie case to obtain a default judgment. They also argue that plaintiff's failure to comply with former RPAPL 1304 should result in the denial of plaintiff's instant motion. Defendants Lopez additionally assert the court failed to determine that the August 11, 2011 affirmation of plaintiff's counsel did not satisfy the Administrative Order 431/2011, because Ms. Mash admittedly was not a representative of plaintiff MERS, but rather was a representative of Vanderbilt, the party proposed to be substituted as plaintiff for MERS.

Plaintiff contends that defendants Lopez should be estopped, pursuant to the doctrine of judicial estoppel or inconsistent positions, from moving for leave to reargue their prior opposition, or claiming that plaintiff failed to comply with former RPAPL 1304 as a ground for denying the instant motion for leave to enter a judgment of foreclosure and sale. Contrary to such contention, defendants Lopez took the same position, i.e. plaintiff's failure to comply with RPAPL 1304, in their prior cross motion, and previously sought to assert such failure as an affirmative defense in its proposed late answer.

That branch of the cross motion by defendants Lopez seeking leave to reargue their prior opposition to the branch of the motion by plaintiff for leave to enter a judgment of foreclosure and sale is denied. Defendants Lopez were not aggrieved by the prior order to the extent it denied that branch of plaintiff's motion for leave to enter the judgment of foreclosure and sale against them.

The court retains continuing jurisdiction to reconsider any prior intermediate determination it has made during the pendency of the action (see Aridas v Caserta, 41 NY2d 1059, 1061 [1977]; Daniels v Howell, 9 AD3d 442 [2004]). Therefore, the court is not precluded from re-examining the issue of the applicability of former RPAPL 1304 in relation to the present motion for leave to enter a judgment of foreclosure and sale by plaintiff. This conclusion is also [*5]without regard to whether defendants Lopez waived any defense premised upon violation of RPAPL 1304 (see RPAPL 1302[2]) by their failure to move, pre-answer, to dismiss the complaint on such basis, or serve an answer with such defense.

The version of RPAPL 1304 in effect at the time of the commencement of this action required the service of a 90-day notice with regard to, among other things, a "nontraditional home loan," prior to the commencement of an action for foreclosure (see L 2008, ch 472). Although the adjustable rate note and the rider to the subject mortgage specifically refer to the loan as an "Interest Only ARM," and call for the payment of interest only for the "first 120 payments (the Interest-Only Period')," and therefore qualifies as an "interest only" nontraditional home mortgage loan (former RPAPL 1304[5][e], L 2008, ch 472), there is no evidence the principal amount of the loan at origination did not exceed the conforming loan size that was in existence at the time of origination for a comparable dwelling as established by the federal national mortgage association (see former RPAPL 1304[5][b][i]).

RPAPL 1302 required any foreclosure complaint relating to a "high-cost home loan" or a "subprime home loan," as such terms were defined in Banking Law §§ 6-l and 6-m, to contain an affirmative allegation that the plaintiff complied with, among other things, all the provisions of RPAPL 1304 (see RPAPL 1302[2]). It did not require the plaintiff to allege compliance with RPAPL 1304 when the mortgage loan was a "nontraditional home loan" as defined in former RPAPL 1304(5)(e). Thus, to deny the motion for leave to enter a judgment of foreclosure and sale against defendants Lopez based upon plaintiff's failure to demonstrate compliance with RPAPL 1304, would be an improvident exercise of discretion.

In support of its motion for leave to enter a judgment of foreclosure and sale as against defendants, plaintiff offered, among other things, an affirmation by its counsel, a copy of the mortgage and note, and an affidavit of merit by Ms. Stubblefield, attesting to the default in payment of the monthly installment payment in the amount of $2,389.24 under the mortgage and note by defendants Lopez on December 1, 2008.

Plaintiff has also presented a copy of the August 11, 2011 affirmation of Ms. Rogers in compliance with Administrative Order 431/2011. That order requires a plaintiff's counsel in a residential mortgage foreclosure action to file with the court, at the time of the filing of either the proposed order of reference or the proposed judgment, an affirmation confirming the accuracy of the plaintiff's pleadings (see Wells Fargo Bank, N.A. v Hudson, 98 AD3d 576 [2012]; U.S. Bank, NA v Boyce, 93 AD3d 782 [2012]). The August 11, 2011 affirmation of Ms. Rogers indicated that Ms. Rogers had communicated with Ms. Mash as a representative of "plaintiff." Plaintiff now admits such affirmation implied that Ms. Mash was a representative of MERS, when in fact she was a representative of Vanderbilt, the assignee of MERS. However, because leave has been granted herein to substitute Vanderbilt as party plaintiff, and because Davidson Fink represented both MERS and Vanderbilt at the time Ms. Rogers prepared the affirmation, Vanderbilt properly relies upon the Rogers affirmation in fulfillment of the requirement of Administrative Order 431/2011. [*6]

Plaintiff has established its entitlement to judgment of foreclosure and sale. That branch of the motion for leave to enter a judgment of foreclosure and sale is granted.

That branch of the motion by plaintiff for leave to appoint a successor referee is denied as moot. The order of reference did not appoint the Referee as referee to conduct any foreclosure sale.

Settle judgment.

Dated: Long Island City, NY

January 31, 2013

______________________________

ROBERT J. McDONALD

J.S.C.