Opinion
2014-10502 2015-02083
11-18-2015
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Brian WEISS, appellant, et al., defendants.
Law Office of Lawrence Katz PLLC, Cedarhurst, N.Y., for appellant. McCabe, Weisberg & Conway, P.C., New Rochelle, N.Y., and Greenberg Traurig, LLP, New York, N.Y. (Michael A. Weiss of counsel), for respondent (one brief filed).
Law Office of Lawrence Katz PLLC, Cedarhurst, N.Y., for appellant.
McCabe, Weisberg & Conway, P.C., New Rochelle, N.Y., and Greenberg Traurig, LLP, New York, N.Y. (Michael A. Weiss of counsel), for respondent (one brief filed).
Opinion
In an action to foreclose a mortgage, the defendant Brian Weiss appeals, as limited by his brief, from (1) so much an order of the Supreme Court, Nassau County (Adams, J.), dated April 25, 2014, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and to appoint a referee to compute the amount due to the plaintiff, and (2) so much of an order of the same court, also dated April 25, 2014, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer, and to appoint a referee to compute the amount due to the plaintiff.
ORDERED that the appeal from the first order dated April 25, 2014, is dismissed, as that order was superseded by the second order; and it is further,
ORDERED that the second order dated April 25, 2014, is reversed insofar as appealed from, on the law, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Brian Weiss, to strike the answer of that defendant, and to appoint a referee to compute the amount due to the plaintiff are denied, and the first order dated April 25, 2014, is vacated; and it is further,
ORDERED that one bill of costs is awarded to the appellant.
“[I]n an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default” (Argent Mtge. Co., LLC v. Mentesana, 79 A.D.3d 1079, 1080, 915 N.Y.S.2d 591 [internal quotation marks omitted]; see Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 842, 7 N.Y.S.3d 147; US Bank N.A. v. Weinman, 123 A.D.3d 1108, 1109, 2 N.Y.S.3d 128). “Where the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief” (HSBC Bank USA, N.A. v. Roumiantseva, 130 A.D.3d 983, 983, 15 N.Y.S.3d 117; see Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578). A plaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 18 N.Y.S.3d 67). “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” (U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578; see U.S. Bank N. Assn. v. Faruque, 120 A.D.3d at 577, 991 N.Y.S.2d 630).
Here, the plaintiff failed to establish, prima facie, that it had standing to commence this action. The affidavit of an assistant secretary of the plaintiff's loan servicer contained conclusory statements regarding the plaintiff's possession of the note, without any factual details of a physical delivery, and thus, failed to establish that the plaintiff had physical possession of the note prior to commencing this action (see Flagstar Bank, FSB v. Anderson, 129 A.D.3d 665, 665–666, 12 N.Y.S.3d 118; US Bank N.A. v. Faruque, 120 A.D.3d at 577, 991 N.Y.S.2d 630; Deutsche Bank Natl. Trust Co. v. Haller, 100 A.D.3d 680, 682, 954 N.Y.S.2d 551; cf. Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361, 12 N.Y.S.3d 612, 34 N.E.3d 363). Although the assistant secretary of the plaintiff's loan servicer stated in her affidavit that the plaintiff was the holder of the note, she never stated that the plaintiff was the holder of the note at the time the action was commenced (see Wells Fargo Bank, NA v. Burke, 125 A.D.3d 765, 766–767, 5 N.Y.S.3d 107; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578). Furthermore, the copy of the note submitted by the plaintiff merely contained an undated indorsement by the original lender to IndyMac Bank, F.S.B., and a second undated indorsement in blank (see Flagstar Bank, FSB v. Anderson, 129 A.D.3d at 666, 12 N.Y.S.3d 118; U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578). Finally, the written assignment of mortgage to the plaintiff dated June 19, 2012, transferred only the mortgage and, thus, failed to demonstrate that the note also was assigned at that time (see Flagstar Bank, FSB v. Anderson, 129 A.D.3d at 666, 12 N.Y.S.3d 118; Wells Fargo Bank, NA v. Burke, 125 A.D.3d at 767, 5 N.Y.S.3d 107; US Bank N.A. v. Faruque, 120 A.D.3d at 577, 991 N.Y.S.2d 630).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Brian Weiss, to strike the answer of that defendant, and to appoint a referee to compute the amount due to the plaintiff.