Opinion
No. 2022-04630 Index No. 605764/18
05-29-2024
HSBC Bank USA, NA, respondent, v. Kris Thoppil, et al., appellants, et al., defendant.
Ronald D. Weiss, P.C., Melville, NY, for appellants. LOGS Legal Group LLP, Rochester, NY (Ellis M. Oster of counsel), for respondent.
Ronald D. Weiss, P.C., Melville, NY, for appellants.
LOGS Legal Group LLP, Rochester, NY (Ellis M. Oster of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Kris Thoppil and Valsamma Thoppil appeal from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), entered May 20, 2022. The order, insofar as appealed from, denied those defendants' motion to compel the plaintiff to produce the original note for discovery and inspection and granted those branches of the plaintiff's cross-motion which were for summary judgment on the complaint insofar as asserted against those defendants and for an order of reference.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In April 2018, the plaintiff commenced this mortgage foreclosure action against, among others, the defendants Kris Thoppil and Valsamma Thoppil (hereinafter together the defendants), alleging that the defendants had defaulted on their payment obligations of a note that was secured by a mortgage on certain real property located in New Hyde Park. The plaintiff attached to the complaint a copy of the note, endorsed in blank. The defendants interposed an answer in which they asserted, inter alia, various affirmative defenses, including lack of standing.
Subsequently, the defendants moved to compel the plaintiff to produce the original note for discovery and inspection. The plaintiff opposed the motion and cross-moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. In an order entered May 20, 2022, the Supreme Court, among other things, denied the defendants' motion and granted those branches of the plaintiff's cross-motion. The defendants appeal.
Generally, a plaintiff moving for summary judgment in a mortgage foreclosure action establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default (see Citimortgage, Inc. v Doomes, 202 A.D.3d 752, 753; Bank of Am., N.A. v Martinez, 153 A.D.3d 1219, 1220). Where, as here, the plaintiff's standing has been placed into issue by a defendant, the plaintiff also must prove its standing in order to be entitled to relief (see Citimortgage, Inc. v Doomes, 202 A.D.3d at 753; Bank of Am., N.A. v Martinez, 153 A.D.3d at 1220).
A plaintiff in a mortgage foreclosure action has standing 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; U.S. Bank N.A. v Duthie, 161 A.D.3d 809, 811). "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" (Bank of Am., N.A. v Martinez, 153 A.D.3d at 1220 [internal quotation marks omitted]).
Here, in support of its cross-motion, the plaintiff submitted the note, the mortgage, and proof of the defendants' default in payment. In addition, the plaintiff established, prima facie, its standing by demonstrating that it was the holder of the note when it commenced this action, as evidenced by its attachment of a copy of the note, endorsed in blank, to the complaint (see Citimortgage, Inc. v Doomes, 202 A.D.3d at 753-754; U.S. Bank N.A. v Dayan, 195 A.D.3d 763, 765).
In opposition to the plaintiff's prima facie showing, the defendants failed to raise a triable issue of fact. Contrary to the defendants' contention, the endorsement in blank did not need to be dated, nor did the plaintiff need to establish how it came into possession of the note, in order to be able to enforce it (see UCC 3-204 [2]; Citimortgage, Inc. v Doomes, 202 A.D.3d at 754; HSBC Bank USA, N.A. v Desir, 188 A.D.3d 657, 658). Moreover, the supporting affidavits from employees of the plaintiff and its document custodian averred that the plaintiff possessed the note when it commenced this action (see HSBC Bank USA, N.A. v Viverito, 189 A.D.3d 800, 801; U.S. Bank Trust, N.A. v O'Driscoll, 168 A.D.3d 783, 784-785; U.S. Bank N.A. v Ehrenfeld, 144 A.D.3d 893, 894). Since physical delivery of the note prior to commencement of a foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident, the defendants' contentions regarding the validity of the series of mortgage assignments, including the assignment of the mortgage to the plaintiff, failed to raise a triable issue of fact (see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d at 361; Flagstar Bank, FSB v Mendoza, 139 A.D.3d 898, 900).
Accordingly, the Supreme Court properly granted those branches of the plaintiff's cross-motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, and properly denied the defendants' motion to compel the plaintiff to produce the original note for discovery and inspection (see JPMorgan Chase Bank, N.A. v Caliguri, 36 N.Y.3d 953, 954; see also Deutsche Bank Natl. Trust Co. v Auguste, 185 A.D.3d 657, 658-659).
DUFFY, J.P., MILLER, FORD and LOVE, JJ., concur.