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PHH Mortgage Corporation, Plaintiff(s) v. Robert D. Koch a/k/a Robert Koch, et al

Index No. 2235/11

Plaintiffs commenced his residential mortgage foreclosure suit alleging Koch executed a note and mortgage, but later defaulted by failing to make payments. The mortgage and note were assigned to PHH Mortgage Corp. (PMC) and it accelerated the note, commencing suit based on Koch's default. PMC sought permission to strike the John Doe defendants from the caption arguing they were not necessary parties to the action. The court noted as defendant failed to appear, answer or oppose the motion, there was no prejudice to any party, and granted the request. PMC also sought to appoint a referee to compute. When seeking an order of reference to determine the amount due on an encumbered property, a plaintiff must show its entitlement to a judgment. Here, the court noted that while PMC demonstrated compliance with the notice requirements of Real Property Actions and Proceedings Law §1303, it failed to comply with the strict statutory requirements of RPAPL §1304. Therefore, the court concluded PMC's motion for appointment of a referee to compute under RPAPL §1321 must be denied.

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