text:                           State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
  Decided and Entered: July 14, 2016                     522031
  ________________________________
  
  NATIONSTAR MORTGAGE, LLC,
                      Respondent,
        v
  
  MARC M. ALLING, Also Known                  MEMORANDUM AND ORDER
     as MARC ALLING,
                      Appellant,
                      et al.,
                      Defendants.
  ________________________________
  
  
  Calendar Date:   May 25, 2016
  
  Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.
  
                               __________
  
  
        David Brickman PC, Albany (David Brickman of counsel), for
  appellant.
  
        Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore
  (Fernando C. Rivera-Maissonet of counsel) and Sandelands Eyet
  LLP, New York City (William C. Sandelands of counsel), for
  respondent.
  
                               __________
  
  
  Egan Jr., J.
  
        Appeal from an order of the Supreme Court (O'Connor, J.),
  entered July 1, 2015 in Albany County, which, among other things,
  granted a motion by plaintiff's predecessor in interest for
  summary judgment.
  
        In July 2007, defendant Marc M. Alling (hereinafter
  defendant) executed a note in favor of Countrywide Home Loans,
  Inc. in the amount of $64,000. The note was secured by a
  mortgage in favor of Mortgage Electronic Registration Systems,
                                -2-                522031
  
  Inc., as Countrywide's nominee, and encumbered property located
  in the City of Schenectady, Schenectady County. Defendant
  defaulted on the note in April 2011 and, in September 2011, the
  underlying mortgage was assigned to Bank of America, N.A.,
  successor by merger to BAC Home Loans Servicing, LP – formerly
  known as Countrywide Home Loans Servicing, LP. Bank of America
  sent defendant a demand letter and advised defendant of its
  intent to accelerate the loan in August 2012.
  
        In March 2013, Bank of America commenced this foreclosure
  action against, among others, defendant. On or about May 1,
  2013, Bank of America and defendant entered into a stipulation
  permitting defendant to file an answer on or before May 30,
  2013.1 Shortly thereafter, on or about May 14, 2013, Bank of
  America assigned the mortgage, "together with the note[] and
  obligations therein described," to Nationstar Mortgage, LLC. In
  February 2015, Bank of America moved for, among other things,
  summary judgment and to substitute Nationstar as the named
  plaintiff in this action. Defendant opposed this motion and
  cross-moved to amend his answer. Supreme Court, among other
  things, granted the motion for summary judgment, appointed a
  referee to compute the total sum due and owing, substituted
  Nationstar for Bank of America as the named plaintiff and amended
  the caption accordingly. Defendant now appeals.
  
        We affirm. Defendant initially contends that Bank of
  America lacked standing to bring this foreclosure action because,
  at the time such action was commenced, Bank of America was not
  "the holder or assignee of the mortgage and the holder or
  assignee of the underlying note" (BAC Home Loans Servicing, LP v
  
  
      1
          Although the record references an answer filed on
  defendant's behalf through counsel in August 2013, this pleading
  does not appear in the record on appeal and, upon inquiry from
  this Court, defendant provided only what appears to be a pro se
  answer – in letter form – dated April 1, 2013. Defendant also
  attempted to file an answer dated March 4, 2015, which was
  rejected by Bank of America as untimely. As a result, it does
  not appear as though any answer – other than the April 2013 pro
  se submission – was ever filed in this matter.
                                -3-                522031
  
  Bixby, 135 AD3d 1009, 1010 [2016] [internal quotation marks and
  citation omitted], lv dismissed 27 NY3d 1014 [2016]). This
  argument is premised upon defendant's erroneous belief that Bank
  of America assigned the note and mortgage to Nationstar prior to
  commencing the foreclosure action. As this action was commenced
  in March 2013 and the assignment from Bank of America to
  Nationstar occurred in May 2013, defendant is simply incorrect.
  More to the point, any standing challenge was waived by
  defendant's failure to raise this as an affirmative defense in
  the only answer with which this Court has been provided or in a
  pre-answer motion to dismiss (see CPLR 3018 [b]; 3211 [a] [3];
  [e]; CNB Realty v Stone Cast, Inc., 127 AD3d 1438, 1439 [2015];
  EMC Mtge. Corp. v Gass, 114 AD3d 1074, 1075 [2014]; HSBC Bank USA
  N.A. v Pacyna, 112 AD3d 1246, 1247 [2013]).
  
        As to the merits, "[t]o establish entitlement to summary
  judgment in a foreclosure action, a plaintiff must produce
  evidence of the mortgage and unpaid note along with proof of the
  mortgagor's default" (Wells Fargo Bank, NA v Ostiguy, 127 AD3d
  1375, 1376 [2015]; see U.S. Bank N.A. v Carnivale, 138 AD3d 1220,
  1220 [2016]; Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d
  737, 738 [2015]; Schantz v O'Sullivan, 288 AD2d 536, 536-537
  [2001]). Here, in support of its motion for summary judgment,
  Bank of America tendered, among other things, copies of the note,
  mortgage and relevant assignment agreements, as well as a copy of
  its August 2012 demand letter attesting to defendant's default
  and notifying defendant of its intent to accelerate the loan.
  Additionally, Bank of America provided an affidavit from
  Nationstar's assistant secretary, who, upon reviewing all of the
  pertinent records (including those maintained by Bank of America)
  and attesting to the assignment of the subject note and mortgage,
  averred that defendant was in default commencing with the April
  1, 2011 mortgage payment and all subsequent payments thereafter
  due. Such proof was sufficient to demonstrate Bank of America's
  prima facie entitlement to judgment as a matter of law, thereby
  shifting the burden to defendant to raise a question of fact as
  to a bona fide defense to foreclosure (see U.S. Bank N.A. v
  Godwin, 137 AD3d 1260, 1262 [2016]; PHH Mtge. Corp. v Davis, 111
  AD3d 1110, 1111 [2013], lv dismissed 23 NY3d 940 [2014]). In
  opposition, defendant argued only that Bank of America failed to
  properly credit certain of his mortgage payments made in 2009 and
                                  -4-                522031
  
  2010. However, any omission by Bank of America in this regard
  does not excuse – and, more to the point, defendant does not
  dispute – the fact that he subsequently defaulted on his
  obligations in 2011, and the record makes clear that it is the
  2011 default that forms the basis for this foreclosure action.
  Indeed, in a May 2013 letter addressed to Nationstar, defendant
  readily admitted that he "stopped making payments" on the subject
  loan in September 2011 – resulting in a delinquency of, by
  defendant's count, "20 payments."2 Inasmuch as defendant failed
  to tender sufficient proof to raise a question of fact relative
  to his admitted default, Supreme Court, among other things,
  properly granted Bank of America's motion for summary judgment,
  substituted Nationstar for Bank of America as the named plaintiff
  and amended the caption accordingly.3
  
          Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.
  
  
  
  
      2
          The seeming discrepancy as to the date upon which
  defendant's default occurred stems from the fact that the last
  payment made by defendant – bearing a transaction date of August
  31, 2011 – was applied as a credit to his March 2011 mortgage
  payment. Hence, to Bank of America's analysis, defendant was in
  default beginning with the April 1, 2011 mortgage payment,
  whereas – to defendant's thinking – he was current on his
  mortgage until he admittedly stopped making payments in September
  2011. Regardless of the date employed, however, there is no
  question that defendant was in default when the demand letter was
  sent in August 2012 and when this action was commenced in March
  2013.
      3
          To the extent that – prior to his admitted default in
  September 2011 – certain of defendant's payments may not have
  been properly credited by Bank of America and, hence, the amount
  actually owed by defendant is in doubt, this is a matter for the
  referee to address in computing the sum currently due and owing.
                          -5-                  522031
  
  ORDERED that the order is affirmed, without costs.
  
  
  
  
                         ENTER:
  
  
  
  
                         Robert D. Mayberger
                         Clerk of the Court
  