Loan Funder LLC, Series 18644 v. Ibarra LLC

Loan Funder LLC, Series 18644 v Ibarra LLC

2026 NY Slip Op 31019(U)

March 13, 2026

Supreme Court, New York County

Docket Number: Index No. 850552/2023

Judge: Francis A. Kahn III

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.8505522023.NEW_YORK.002.LBLX036_TO.html[03/24/2026 3:45:50 PM]

!FILED: NEW YORK COUNTY CLERK 03/17/2026 11:58 AMI INDEX NO. 850552/2023

NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/16/2026

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. FRANCIS A. KAHN, Ill PART 32

Justice

---------------------------------------------------------------------------------X INDEX NO. 850552/2023

LOAN FUNDER LLC ,SERIES 18644,

MOTION DATE

Plaintiff,

MOTION SEQ. NO. _ __ 00_2_ __

- V-

IBARRA LLC, DIANA IBARRA, NYC ENVIRONMENTAL

CONTROL BOARD, NYS DEPARTMENT OF TAXATION & DECISION + ORDER ON

FINANCE, MOTION

Defendants.

------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 48 , 49 , 50, 51 , 52,

53, 54, 55, 56, 57, 58 , 59, 60,61 , 62,63,64, 65,66 , 67,68 , 69, 70, 71, 72, 73, 74

were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, the motion is determined as follows:

This is an action to foreclose on a mortgage encumbering a parcel of commercial real property

located at 228 West 136th Street, New York, New York. The consolidated and modified mortgage,

dated April 2, 2021, was given by Defendant Ibarra, LLC ("Ibarra") to non-party Mortgage Electronic

Registration Systems, Inc. ("MERS"), as nominee for Great Stone Capital Fund A LLC ISAOA/A TIMA

("Great") to secure a loan with an original principal amount of $1 ,300,000.00. The indebtedness is

memorialized by a mortgage note of the same date as the mortgage. The note and mortgage were

executed by Defendant Diana Ibarra ("Diana") as Managing Member of Ibarra. Concomitantly with the

loan documents, Defendant Diana executed a guarantee of the indebtedness. On April 2, 2022, and July

2, 2022, Plaintiff Loan Funder LLC, Series 18644 ("Funder") and Defendnats executed extension

agreements wherein Defendants acknowledged the indebtedness, and their maturity default.

Plaintiff commenced this action and pied that Defendants defaulted in repayment on or about

October 2, 2022. Defendants answered and pied forty-eight affirmative defenses, including lack of

standing, and two counterclaims. By order of this Court dated January 16, 2025 , Plaintiffs motion for

summary judgment was denied on the basis that Plaintiff failed to prove its standing to commence this

action. Otherwise, Plaintiff demonstrated the prima facie elements of its foreclosure action and that all

the other affirmative defenses should be stricken. Now, Plaintiff again moves for summary judgment

and an order of reference . Defendants Ibarra and Diana oppose the motion.

Proof supporting aprimafacie case on a motion for summary judgment must be in admissible

form (see CPLR §3212[b] ; Tri-State Loan Acquisitions Ill, LLC v Litkowski, 172 AD3d 780 [1 st Dept

2019]). In support of a motion for summary judgment on a cause of action for foreclosure, a plaintiff

may rely on evidence from persons with personal knowledge of the facts, documents in admissible form

and/or persons with knowledge derived from produced admissible records (see eg U.S. Bank NA. v

850552/2023 LOAN FUNDER LLC, SERIES 18644 vs . IBARRA LLC ET AL Page 1 of 4

Motion No. 002

1 of 4

[* 1]

!FILED: NEW YORK COUNTY CLERK 03/17/2026 11:58 AM! INDEX NO. 850552/2023

NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/16/2026

Moulton, l 79 AD3d 734, 738 [2d Dept 2020]). No particular set of business records must be proffered,

as long as the admissibility requirements of CPLR 4518[ a] are fulfilled and the records evidence the

facts for which they are relied upon (see eg Citigroup v Kopelowitz, 14 7 AD3d 1014, 1015 [2d Dept

2017]).

The only unresolved issue on this motion is proof of Plaintiffs standing. Plaintiff's present

motion was supported by an affidavit from Amar Shah, ("Shah"), the Deputy Chief Credit Officer for

the Plaintiff and for its authorized loan servicer Loan Funder LLC ("Funder"), as well as Letycia Lopez,

("Lopez"), Senior Mediation Specialist of Selene Finance LP ("Selene"), the servicer and attorney-in-

fact for U.S. Bank Trust National Association, not in its individual capacity but solely as owner trustee

for RCF2 Acquisition Trust assignee to Plaintiff. Shah and Lopez averred their affidavits were based on

"personal knowledge and based upon the books and records of [Funder]". Both affidavits laid a proper

foundation for the admission their respective employer's records into evidence under CPLR §4518 by

sufficiently showing that the records "reflect[ed] a routine, regularly conducted business activity, and

that it be needed and relied on in the performance of functions of the business", "that the record[ s][were]

made pursuant to established procedures for the routine, habitual, systematic making of such a record"

and "that the record[ s] [were] made at or about the time of the event being recorded" (Bank ofN. Y

Mellon v Gordon, 171 AD3d 197, 204 [2d Dept 2019] ; see also Bank ofAm v Brannon , 156 AD3d 1 [1st

Dept 201 7]). The records of prior entities were also admissible since Shah and Lopez established that

those records were received from the makers and incorporated into the records its employers kept and

that it routinely relied upon such documents in its business (see eg US Bank N A. v Kropp-Somoza, 191

AD3d 918 [2d Dept 2021 ]). Further, the records referenced by Shah and Lopez were annexed to their

affirmations (cf Deutsche Bank Natl. Trust Co. v Kirschenbaum, 187 AD3d 569 [1 st Dept 2020]).

Unlike the prior motion, annexed to Lopez' s affidavit was the account ledger for the loan at

issue. Those documents demonstrated that Defendants made two payments after the first extension

agreement was executed and three after the second agreement. "By entering into the [extension]

agreement[s] and making monthly installment payments thereunder, the defendants expressly

acknowledged the plaintiffs status as the holder of the subject note as of [2022]-well before the

commencement of this action" (Wells Fargo Bank, NA . v Grafjioli, 167 AD3d 969, 971 [2d Dept

2018]). As such "Defendants cannot now be heard to object to the ownership [of Plaintiff] which they

embraced when it suited them" (!RB-Brasil Resseguros SA . v Portobello Intl. Ltd. , 84 AD3d 637 [l5t

Dept 2011 ]).

In opposition, Defendants' argument that the within motion is an inappropriate successive

motion for summary judgment is unavailing. Multiple disputed issues are not presented here (cf Wells

Fargo Bank v Gittens, 217 AD3d 901 , 903 [2d Dept 2023]) and entertaining a second summary

judgment motion furthers the ends of justice by allowing the Court to eliminate the need for a trial on

issues that Defendants have not successfully challenged, to wit the existence of the note, mortgage or the

default thereunder (see MTGLQ lnvs, LP v Collado, 183 AD3d 414 [1 st Dept 2020]; Bank ofAm NA v

Brannon , 156 AD3d, 1, 6 [l5t Dept 2017][Uncontradicted facts on a motion for summary judgment are

"deemed to be admitted"]).

Accordingly, it is

ORDERED that Plaintiffs motion for summary judgment against the appearing Defendants and

an order of reference is granted; and it is

850552/2023 LOAN FUNDER LLC, SERIES 18644 vs. IBARRA LLC ET AL Page 2 of 4

Motion No. 002

2 of 4

[* 2]

!FILED: NEW YORK COUNTY CLERK 03/17/2026 11:58 AM! INDEX NO. 850552/2023

NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/16/2026

ORDERED that all the remaining affirmative defense of standing is stricken, and it is

ORDERED that Sofia Balile, Esq., 155 Water Street, Ste. 311, Brooklyn, New York 11201,

646-580-6116 is hereby appointed Referee in accordance with RPAPL § 1321 to compute the amount

due to Plaintiff and examine whether the tax parcel can be sold in parcels; and it is further

ORDERED that in the discretion of the Referee, a hearing may be held, and testimony taken; and

it is further

ORDERED that by accepting this appointment the Referee certifies that he is in compliance with

Part 36 of the Rules of the Chief Judge 22 NYCRR Part 36), including, but not limited to §36.2 (c)

("Disqualifications from appointment"), and §36.2 (d) ("Limitations on appointments based upon

compensation"), and, if the Referee is disqualified from receiving an appointment pursuant to the

provisions of that Rule, the Referee shall immediately notify the Appointing Judge ; and it is further

ORDERED that, pursuant to CPLR 8003(a), and in the discretion of the court, a fee of $350 shall

be paid to the Referee for the computation of the amount due and upon the filing of his report and the

Referee shall not request or accept additional compensation for the computation unless it has been fixed

by the court in accordance with CPLR 8003(b); and it is further

ORDERED that the Referee is prohibited from accepting or retaining any funds for himself or

paying funds to himself without compliance with Part 36 of the Rules of the Chief Administrative Judge;

and it is further

ORDERED that if the Referee holds a hearing or is required to perform other significant services

in issuing the report, the Referee may seek additional compensation at the Referee's usual and

customary hourly rate; and it is further

ORDERED that Plaintiff shall forward all necessary documents to the Referee and to Defendants

who have appeared in this case within 30 days of the date of this order and shall promptly respond to

every inquiry made by the Referee (promptly means within two business days) ; and it is further

ORDERED that ifDefendant(s) have objections, they must submit them to the Referee within 14

days of the mailing of Plaintiffs submissions; and include these objections to the Court if opposing the

motion for a judgment of foreclosure and sale; and it is further

ORDERED that the failure by Defendants to submit objections to the Referee shall be deemed a

waiver of objections before the Court on an application for a judgment of foreclosure and sale; and it is

further

ORDERED that Plaintiff must bring a motion for a judgment of foreclosure and sale within 30

days ofreceipt of the Referee's report; and it is further

ORDERED that if Plaintiff fails to meet these deadlines, then the Court may sua sponte vacate

this order and direct Plaintiff to move again for an order of reference and the Court may sua sponte toll

interest depending on whether the delays are due to Plaintiffs failure to move this litigation forward;

and it is further

850552/2023 LOAN FUNDER LLC, SERIES 18644 vs . !BARRA LLC ET Al Page 3 of 4

Motion No. 002

3 of 4

[* 3]

!FILED: NEW YORK COUNTY CLERK 03/17/2026 11:58 AM! INDEX NO. 850552/2023

NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/16/2026

ORDERED that counsel for Plaintiff shall serve a copy of this order with notice of entry upon

the County Clerk (60 Centre Street, Room 141 B) and the General Clerk's Office (60 Centre Street,

Room 119), who are directed to mark the court's records to reflect the parties being removed pursuant

hereto; and it is further

ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office

shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County

Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's

website at the address (www.nycourts.gov/supctmanh)]; and it is further

All parties are to appear for a virtual conference via Microsoft Teams on July 16, 2026, at 11:00

a.m. If a motion for judgment of foreclosure and sale has been filed Plaintiff may contact the Part Clerk

(SFC-Part32-Clerk@nycourts.gov) in writing to request that the conference be cancelled. If a motion

has not been made, then a conference is required to explore the reasons for the delay.

3/13/2026 ~L-LL---3- .

DATE RANCIS KAHN, 111, A.J.S.C.

CHECK ONE: CASE DISPOSED NONtlQti,,fs~N-CiS A. KAHN Ill

GRANTED □ DENIED GRANTED IN PART □ OTHER J.S.C.

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

850552/2023 LOAN FUNDER LLC, SERIES 18644 vs. lBARRA LLC ET AL Page 4 of 4

Motion No. 002

4 of 4

[* 4]