Opinion
No. 25522/2012.
2013-04-29
VALLEY NATIONAL BANK, as Successor by Merger to State Bank of Long Island, Plaintiff, v. 58 VLIMP, LLC, a/k/a SJPMAP, LLC, Stephen J. Phillips, New York State Dept. of Taxation & Finance, United States of America and John doe # 1 to john Doe # 10, the names being fictitious and unknown to the plaintiff the persons and parties intended being tenants, occupants persons, corporations, if any, having or claiming interests or lien upon the premises, Defendants.
Foechelli, Curto, et. al, Uniondale, NY, for Plaintiff. Darrell J, Conway, P.C., 58 Vlimp & Phillips, Babylon, NY, for Defendants.
Foechelli, Curto, et. al, Uniondale, NY, for Plaintiff. Darrell J, Conway, P.C., 58 Vlimp & Phillips, Babylon, NY, for Defendants.
THOMAS F. WHELAN, J.
ORDERED that this motion (# 001) by the plaintiff for accelerated judgments against the defendants, identification and deletion of party defendants, and the appointment of a referee to compute is considered under CPLR 3212, 3215 and RPAPL 1321 and is granted.
The plaintiff commenced this action to foreclose a consolidated commercial mortgage given by defendant 58 VLIMP, LLC [hereinafter VLIMP] on December 29, 2005 to secure certain mortgage notes that were consolidated under the terms of a Consolidation and Extension Agreement executed on that same date. Under the terms of the loan documents, monies totaling some $4,600,000.00 were made available to defendant VLIMP by the State Bank of Long Island, a predecessor-in-interest by merger to the plaintiff. As additional security for the loan, defendant Stephen J. Phillips, individually and by his property management guardian, David J. Depinto, Esq., executed, an unconditional guarantee of payment and performance of the obligations of VLIMP on December 29, 2005.
Various other loan documents were also executed on December 29, 2005 by the parties and several thereafter, by which, the maturity date of the loan was extended for additional consideration. In each of these five extension agreements, both VLIMP and Stephen Phillips, as guarantor, waived all claims, defenses and/or set-offs they might otherwise have against the mortgagee or its successors. The defendants first defaulted in their payment obligations on January 1, 2012, and again on January 13, 2012 which was the last extended maturity date of the loan. The plaintiff claims that none of the defaults have been cured by either of the obligor defendants.
In August of 2012, the within action was commenced by the filing of the summons and complaint. Therein, the plaintiff seeks the remedy of foreclosure and sale and a deficiency judgment against the mortgagor and guarantor defendants. The plaintiff further seeks foreclosure of its security interest in certain assets of personalty under the terms of the consolidated mortgage dated December 29, 2005. Issue was joined by service of a joint answer by the corporate mortgagor and its guarantor co-defendant dated September 27, 2012. That answer contains but one affirmative defense, namely, failure to state a claim upon which relief may be granted. An amended answer dated October 31, 2012 was served by the obligor defendants, which added a counterclaim for breach of a purported obligation on the part of the plaintiff's predecessor-in-interest to diligently process a new loan application submitted by the mortgagor in April of 2011 and to fund same in accordance with the terms of an acceptance letter of April 26, 2012. Such breach is alleged to have caused the answering defendants' defaults in payment under the loan documents sued upon in this action, all of which, allegedly provide the defendants with a cognizable counterclaim for money damages and a viable defense to the plaintiff's demands for relief. All other defendants joined herein by service of the summons and complaint failed to serve answers in response to such service.
By the instant motion, the plaintiff seeks summary judgment dismissing the affirmative defense and counterclaim asserted in the amended answer of the obligor defendants and for summary judgment on the FIRST, THIRD and FOURTH causes of action set forth in the plaintiff's complaint. Therein, the plaintiff seeks the remedies of foreclosure and sale, recovery of counsel fees and a deficiency judgment from the obligor defendants. The plaintiff also moves for an order identifying the name of the entity who was served as an unknown defendant pursuant to CPLR 1024, the deletion of the remaining unknowns and an amendment of the caption to reflect same. The plaintiff further seeks a default judgment against all defendants who failed to answer including the newly identified defendant, Corporate Realty Consultants, a/k/a, IOPTOMIZE Realty. Finally, the plaintiff asks the court to appoint a referee to compute amounts due under the terms of the note and mortgage.
The answering defendants oppose the motion by the assertion of new defenses not raised in their answer. They now claim that the plaintiff: 1) lacks standing to prosecute the claims interposed herein; and 2) fraudulently induced or intentionally caused the defendants to default under the terms of the loan documents. The opposing papers also include claims that the plaintiff's motion is premature due to the absence of discovery proceedings and that the plaintiff's misrepresentations, fraud and breaches of oral assurances and written commitments on the part of the plaintiff regarding its extension of future credit under the terms of the April 2011 new loan application coupled with the defendants' compliance with all obligations imposed upon it are sufficient to preclude the plaintiff from obtaining the remedies afforded to it by reason of the defendants' defaults in payment. For the reasons stated below, these claims are rejected and the plaintiff's motion is granted.
Entitlement to a judgment of foreclosure may be established, as a matter of law, where the plaintiff produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact ( see Emigrant Mtge. Co., Inc. v. Beckerman, 105 AD3d 895, 2013 WL 1632059 [2d Dept 2013]; Solomon v. Burden, 104 AD3d 839, 961 N.Y.S.2d 535 [2d Dept 2013]; US Bank Natl. Ass'n v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012]; Baron Assoc., LLC v. Garcia Group Enter., 96 AD3d 793, 946 N.Y.S.2d 611 [2d Dept 2012]; Citibank, N.A. v. Van Brunt Prop., LLC, 95 AD3d 1158, 945 N.Y.S.2d 330 [2d Dept 2012]; HSBC Bank v. Shwartz, 88 AD3d 961, 931 N.Y.S.2d 528 [2d Dept 2011]; US Bank N.A. v. Eaddy, 79 AD3d 1022, 1022, 914 N.Y.S.2d 901 [2010];Zanfini v. Chandler, 79 AD3d 1031, 912 N.Y.S.2d 911 [2d Dept 2010] ). To establish prima facie entitlement to judgment as a matter of law on the issue of liability with respect to a guaranty, a plaintiff must submit proof of the underlying note, a guaranty and the failure of the defendant to make payment in accordance with the terms of those instruments ( see Emigrant Mtge. Co., Inc. v. Beckerman, 105 AD3d 895, 2013 WL 1632059,supra; Solomon v. Burden, 104 AD3d 839, 961 N.Y.S.2d 535 [2d Dept 2013], supra; US Bank Natl. Ass'n v. Denaro, 98 AD3d 964,supra; Baron Assoc., LLC v. Garcia Group Enter., 96 AD3d 793,supra ).
Here, the moving papers established the plaintiff's entitlement to summary judgment on its first cause of action to the extent it asserts claims against the answering defendants as such papers included copies of the consolidated note and mortgage and other loan documents, including the Consolidation, Modification and Extension Agreement and the written guaranty of defendant Phillips executed on December 26, 2005, together with due evidence of a default under the terms thereof ( seeCPLR 3212; RPAPL § 1321; Emigrant Mtge. Co., Inc. v. Beckerman, 105 AD3d 895, 2013 WL 1632059,supra; Solomon v. Burden, 104 AD3d 839,supra; US Bank Natl. Ass'n v. Denaro, 98 AD3d 964,supra ). The moving papers further included due proof that the affirmative defense and counterclaim asserted in the amended answer of the obligor defendants are without merit as such defendants waived all such defenses and claims in one or more of the loan documents executed by them at the time of origination or thereafter. The plaintiff thus established a prima facie entitlement to summary judgment dismissing the affirmative defense and counterclaim and to summary judgment on its claims for foreclosure and sale of the mortgaged premises and the recovery of attorneys fees and a deficiency judgment against the obligor defendants.
It was thus incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of some affirmative defense asserted in their answer or otherwise available to them ( see Flagstar Bank v. Bellafiore, 94 AD3d 1044, 943 N.Y.S.2d 551 [2d Dept 2012]; Grogg Assocs. v. South Rd. Assocs., 74 AD3d 1021, 907 N.Y.S.2d 22 [2d Dept 2010]; Wells Fargo Bank v. Karla, 71 AD3d 1006, 896 N.Y.S.2d 681 [2d Dept 2010]; Washington Mut. Bank v. O'Connor, 63 AD3d 832, 880 N.Y.S.2d 696 [2d Dept 2009] ). Notably, self-serving and conclusory allegations do not raise issues of fact and do not require the plaintiff to respond to alleged affirmative defenses which are based on such allegations ( see Charter One Bank, FSB v. Leone, 45 AD3d 958, 845 N.Y.S.2d 513 [3d Dept 2007]; Rosen Auto Leasing, Inc. v. Jacobs, 9 AD3d 798, 780 N.Y.S.2d 438 [3d Dept 2004] ). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movants' papers may be deemed admitted as there is, in effect, a concession that no question of fact exists ( see Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 [1975];see also Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 AD3d 606, 957 N.Y.S.2d 88 [1st Dept 2012]; Argent Mtge. Co., LLC v. Mentesana, 79 AD3d 1079, 915 N.Y.S.2d 591 [2d Dept 2010] ). A review of the opposing papers submitted by answering defendants reveals that the same were insufficient to raise any genuine question of fact requiring a trial on the merits of the plaintiff's claims for foreclosure and sale and insufficient to demonstrate any bona fide defense to the plaintiff's claim for a judgment of foreclosure and sale ( see Cochran Inv. Co., Inc. v. Jackson, 38 AD3d 704, 834 N.Y.S.2d 198 [2d Dept 2007] ).
It is well established that a waiver of defenses may be set forth in commercial loan documents such as written guarantees of the obligations of the borrower or in agreements executed subsequent to the loan documents by the parties thereto or their successors in interest ( see JPMCC CICB Bronx Apts., LLC, 84 AD3d 613, 922 N.Y.S.2d 779 [1st Dept 2011]; Inland Mtge. Capital Corp. v. Realty Equities NM LLC, 71 AD3d 1089, 900 N.Y.S.2d 79 [2d Dept 2010]; North Fork Bank v. Computerized Quality Separation Corp., 62 AD3d 973, 879 N.Y.S.2d 575 [2d Dept 2009] ); Red Tulip, LLC v. Neiva, 44 AD3d 204, 842 N.Y.S.2d 1 [2007];Fleet Bank v. Petri Mech. Co., 244 A.D.2d 523, 664 N.Y.S.2d 462 [2d Dept 1997] ). Such waivers are enforceable as they do not contravene the public policy of this State ( see Chemical Bank N.Y. Trust Co. v. Batter, 31 A.D.2d 801, 297 N.Y.S.2d 363 [1st Dept 1969] ). They do, however, present defendants who have waived such defenses with “an insurmountable obstacle” to defeating a claim ( see JPMCC CICB Bronx Apts., LLC, 84 AD3d 613,quoting Red Tulip, LLC v. Neiva, 44 AD3d 204,supra ).
Here, the record is replete with documentary evidence that the guarantor defendant waived defenses, claims and set-offs, of the type asserted in his amended answer and opposing papers, in the written, unconditional guarantee he executed on December 26, 2005. The record also contains documentary evidence that defendant Phillips and the mortgagor defendant waived defenses, claims and set-offs of the type asserted in their amended answer, as enlarged in their opposing papers, in the five extension agreements executed by them in 2011. The failure of the defendants to address these waivers gives rise to an inference that the answering defendants were aware of the insurmountable obstacle these waivers present to the formulation of any valid defense or cognizable claims against the plaintiff, including the claim that the absence of engagement in discovery warrants a denial of the plaintiff's motion pursuant to CPLR 3212.
In any event, the plaintiff, by way of its reply papers, established that the defense and counterclaim asserted by the defendants are each without merit. The newly asserted standing defense is procedurally defective inasmuch as the same was waived by the answering defendants by reason of their failure to assert such defense in their answer or amended answer ( see HSBC Bank USA, N.A. v. Taher, 104 AD3d 815, 2013 WL 1136611 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v. Pietranico, 102 AD3d 724, 957 N.Y.S.2d 868 [2d Dept 2013]; Bank of New York v. Alderazi, 99 AD3d 837, 951 N.Y.S.2d 900 [2d Dept 2012]; U.S. Bank Natl. Ass'n v. Denaro, 98 AD3d 964,supra; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 244, 837 N.Y.S.2d 247 [2d Dept 2007] ). The standing defense is also substantively insufficient since the plaintiff's status as the successor-by-merger to the original lender clearly vested in it the requisite standing to prosecute the claims interposed herein ( seeBanking Law § 602; Capital One, N.A. v. Brooklyn Flatiron, LLC, 85 AD3d 837, 925 N.Y.S.2d 350 [2011];Ladino v. Bank of America, 52 AD3d 571, 861 N.Y.S.2d 683 [2d Dept 2008]; Barclay's Bank of New York, N.A. v. Smitty's Ranch, 122 A.D.2d 323, 504 N.Y.S.2d 295 [2d Dept 1986] ).
Also without merit are the answering defendants' claims that any default in payment on their part is excusable due to conduct on the part of the plaintiff. Such conduct includes the bank's failure to extend further credit of the type contemplated by a loan application submitted by the defendants in April of 2011 and the plaintiff's issuance of an April 26, 2012 acceptance letter, in which, the plaintiff purportedly agreed to re-finance the existing mortgage loan by the issuance of a new 25 year mortgage. In addition, the bank's acceptance and retention of the defendants' $20,000.00 refundable commitment deposit is alleged to constitute more evidence of a consummated agreement to extend further credit which the plaintiff's predecessor-in-interest allegedly breached. These claims may be fairly construed as sounding in a claim for a material breach of a collateral contract. Such breach purportedly gives rise to defenses which work to excuse, if not relieve, the defendants of their admitted defaults in payment under the subject mortgage loan documents.
That a lender has no obligation to forebear its remedies before or after a default by a borrower or to modify the terms of its loan by the extension of a new loan or other refinance arrangement is clear ( see Graf v. Hope Bldg. Corp., 254 N.Y. 1, 4–5, 171 NE 884 [1930];Wells Fargo Bank, N.A. v. Van Dyke, 101 AD3d 638, 2012 WL 6699200 [1st Dept 2012]; Key Intern. Mfg. Inc. v. Stillman, 103 A.D.2d 475, 480 N.Y.S.2d 528 [2d Dept 1984]; Onewest Bank, FSB v. Davies, 38 Misc.3d 1230(A), 2013 WL 846573 [Sup Ct. Suffolk County 2013]; Flushing Preferred Funding Corp. v. Patricola Realty Corp., 36 Misc.3d 1240(A), 2012 WL 3984476 [Sup.Ct. Suffolk County 2012]; Carver Fed. Sav. Bank v. Redeemed Christian Church, 35 Misc.3d 1228(A), 954 N.Y.S.2d 758 [Sup.Ct. Suffolk County 2012]; US Bank Natl. Ass'n v. Major Holdings, LLC., 35 Misc.3d 1224(A), 953 N.Y.S.2d 554 [Sup.Ct. Suffolk County 2012] ). This rule is no less applicable to cases wherein the borrower performs all preliminary steps imposed upon the securing any such modification or refinance arrangements ( see JP Morgan Chase Bank, Natl. Assn. v. Ilardo, 36 Misc.3d 359, 940 N.Y.S.2d 829 [Sup.Ct. Suffolk County 2012] ). Consequently, a failure to modify or refinance an existing loan does not give rise to an estoppel or constitute bad faith, unclean hands or other conduct upon which a mortgagor defendant may predicate a cognizable defense to a claim for foreclosure and sale ( see Graf v. Hope Bldg. Corp., 254 N.Y. 1,supra; Jo–Ann Homes v.. Dworetz, 25 N.Y.2d 112, 302 N.Y.S.2d 799 [1969];Wells Fargo Bank, N .A. v. Van Dyke, 101 AD3d 638,supra; Key Intern. Mfg. Inc. v. Stillman, 103 A.D.2d 475,supra; JP Morgan Chase Bank, Natl. Assn. v. Ilardo, 36 Misc.3d 359,supra ).
The defendants' reliance upon the purported breach of the bank's obligations under the acceptance letter of April 26, 2011, wherein it acknowledged receipt of the defendants' new loan application and imposed conditions upon the bank's consideration of such application, is misplaced. The letter expressly states that it is not a commitment to lend monies nor is it intended to be a commitment letter under which the bank is obligated to extend credit to the applicant under the terms set forth therein ( see page 3 of Exhibit 1 of the plaintiff's reply papers). It thus cannot be read as an enforceable writing imposing obligations on the part of the bank to loan more monies to the defendants ( see JMF Consulting Group II, Inc. v. Beverage Mktg. USA, Inc., 97 AD3d 540, 948 N.Y.S.2d 314 [2d Dept 2012] ).
Even if the April 26, 2011 letter could be construed as enforceable, any breach on the part of the bank of such a separate, subsequent and independent agreement would not excuse the defendants of their defaults in payment under the terms of the mortgage loan documents. While it is well established that material breaches by a plaintiff of its obligations under related and unified transactional documents that are entitled to be read together as to all matters of intent and construction, may relieve a defendant of its obligation to perform under the terms of one or more of those transactional documents ( see Nau v. Vulcan Rail & Constr. Co., 286 N.Y. 188, 197, 36 NE 106 [1941];131 Heartland Blvd. Corp. v. C.J. Jon Corp., 82 AD3d 1188, 921 N.Y.S.2d 94 [2d Dept 2011]; Smolev v. Carole Hochman Design Group, Inc., 79 AD3d 540, 913 N.Y.S.2d 79 [1st Dept 2010]; Mortgage Elec. Registration Sys., Inc. v. Maniscalco, 46 AD3d 1279, 848 N.Y.S.2d 766 [3d Dept 2007]; Sharper Prop. Enter., Inc. v. Hubbard, 12 AD3d 494, 785 N.Y.S.2d 89 [2d Dept 2004] ), a viable claim as to the plaintiff's breach of a separate and independent agreement provides a defendant with no defense to the plaintiff's claim for enforcement of its contractual remedies, but instead, provides merely a potential set-off equal to the amount of damages recoverable on such a claim ( see 31 Heartland Blvd. Corp. v. C.J. Jon Corp., 82 AD3d 1188,supra; Gelmin v. Sequa Capital Corp., 269 A.D.2d 492, 707 N.Y.S.2d 108 [2d Dept 2000]; Harris v. Miller, 136 A.D.2d 603, 523 N.Y.S.2d 586 [2d Dept 1988]; Umansky v. Seaboard Indus., Inc., 45 A.D.2d 1051, 358 N.Y.S.2d 22 [2d Dept 1974] ).
Here, the documentation emanating from the new loan application of 2011 were separate, transactional writings independent from the mortgage loan documents. Consequently, the existence of the defendants' counterclaim charging the bank with a breach of a purported obligation under the new loan documents may not serve to defeat the plaintiff's entitlement to the summary judgment demanded by it on claims for foreclosure and sale ( see Singotiko v. Kenealy, 89 AD3d 917, 932 N.Y.S.2d 713 [2d Dept 2011] ).
The defendants' nuanced allegations that their default is excusable because it was caused by the bank's delay and other misdeeds in failing to timely process the April 2011 new loan application and to fund such loan are equally unavailing. Implicated here is the defense of frustration of performance which rests upon the implied covenant of good faith and fair dealing out of which mutual obligations not to intentionally interfere or prevent the other party from carrying out such party's obligations under an agreement arise ( see International Firearms Co. v. Kingston Trust Co., 6 N.Y.2d 406, 189 N.Y.S.2d 911 [1959];Patterson v. Meyerhofer, 204 N.Y. 96, 97 NE 472 [1912];Thor Prop., LLC v. Chetrit Group LLC, 91 AD3d 476, 936 N.Y.S.2d 196 [1st Dept 2012]; REP A8 LLC v. Aventura Tech., Inc., 68 AD3d 1087, 893 N.Y.S.2d 83 [2d Dept 2009]; Syracuse Orthopedic Specialists, P.C. v. Hootnick, 42 AD3d 890, 839 N.Y.S.2d 897 [4th Dept 2007]; see also A .H.A. Gen. Constr., Inc. v. New York City Hous. Auth., 92 N.Y.2d 20, 677 N.Y.S.2d 9 [1998];Pesa v. Yoma Dev. Group, Inc., 18 NY3d 527, 942 N.Y.S.2d 1 [2012];Lager Assoc. v. City of New York, 304 A.D.2d 718, 759 N.Y.S.2d 116 [2d Dept 2003] ).
Like the prevention doctrine, which rests upon the prevention of contractual conditions precedent, the frustration of performance doctrine exists solely for purposes of serving the intent of the parties. It cannot be invoked to add unexpressed new terms, to imply obligations inconsistent with the terms of an existing contract between the parties nor to nullify such terms ( see Thor Prop., LLC v. Chetrit Group LLC, 91 AD3d 476,supra; REP A8 LLC v. Aventura Tech., Inc., 68 AD3d 1087,supra; HGCD Retail Serv., LLC v. 44–45 Broadway Realty, 37 AD3d 43, 826 N.Y.S.2d 190 [1st Dept 2006]; Fesseha v. TD Waterhouse Inv. Serv., Inc., 305 A.D.2d 268, 761 N.Y.S.2d 22 [1st Dept 2003]; Consolidated Edison, Inc. v. Northeast Util., 426 F3d 524, 529 [2d Cir.2005] ). Where a party seeks to achieve a right through the prevention doctrine that was denied to it under the terms of the contract at issue, such party will not succeed in defeating the exercise of contractual rights willingly conferred upon the other party to the agreement. Here, it is the bank's failure to lend more monies which allegedly violated a separate but purportedly related acceptance letter and prevented the defendants from fulfilling their payment obligations under the terms of the mortgage note and guaranty. However, the lending of monies in excess of those available under the mortgage loan documents was a right denied to the defendants under those documents. Simply put, the answering defendants have no defense or viable counterclaim that would warrant a denial of the plaintiff's motion ( see Citibank, N.A. v. Plapinger, 66 N.Y.2d 90, 495 N.Y.S.2d 309 [1985];HGCD Retail Serv., LLC v. 44–45 Broadway Realty, 37 AD3d 43,supra; HSH Nordbank AG New York Branch v. Street, 421 Fed.Appx. 70 [2d Cir.2011] ).
For these reasons and those set forth above, those portions of the plaintiff's motion for summary judgment wherein it seeks an order dismissing the affirmative defense and counterclaim set forth in the defendants' amended answer is granted and such defense and counterclaim are hereby dismissed. Likewise granted are the plaintiff's demands for summary judgment on its FIRST, THIRD and FOURTH causes of action for foreclosure and sale, counsel fees and deficiency judgments against the answering defendants.
Those portions of the instant motion wherein the plaintiff seeks an order identifying Corporate Realty Consultants a/k/a Ioptomize Realty, as the party defendant served as John Doe # 1 and dropping as party defendants the remaining unknown defendants listed in the caption are granted. The plaintiff's further application for an amendment of the captions to reflect same is also granted.
The moving papers further established the default in answering on the part of all other defendants including the newly identified defendant, none of whom served answers to the plaintiff's complaint. Accordingly, the defaults of all such defendants are hereby fixed and determined as are the plaintiff's demands for a default judgment against such defendants ( seeCPLR 3215; RPAPL 1321] ). Since the plaintiff has been awarded summary judgment against the answering defendants and has established a default in answering by the remaining defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage ( seeRPAPL § 1321; Bank of East Asia, Ltd. v. Smith, 201 A.D.2d 522, 607 N.Y.S.2d 431 [2d Dept 1994]; Vermont Fed. Bank v. Chase, 226 A.D.2d 1034, 641 N.Y.S.2d 440 [3d Dept 1996]; LaSalle Bank, NA v. Pace, 31 Misc.3d 627, 919 N.Y.S.2d 794 [Sup.Ct. Suffolk County 2011], aff'd, 100 AD3d 970, 955 N.Y.S.2d 161 [2d Dept 2012] ).
Finally, the plaintiff's demands for the appointment of referee to compute is granted subject to the settlement of a proposed order, providing in blank for the court's nomination of a referee to compute and the other matters necessary to such appointment. The duly settled proposed order of reference shall include a copy of this order.