Opinion
14380 Index No. 850192/18 Case No. 2020–02959
10-14-2021
U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Plaintiff–Appellant, v. Alston FRANCIS, Defendant–Respondent, JPMorgan Chase Bank, N.A., et al., Defendants.
Cohn & Roth, LLC, Mineola (Kevin T. MacTiernan of counsel), for appellant. Lanin Law P.C., New York (Scott L. Lanin of counsel), for respondent.
Cohn & Roth, LLC, Mineola (Kevin T. MacTiernan of counsel), for appellant.
Lanin Law P.C., New York (Scott L. Lanin of counsel), for respondent.
Kapnick, J.P., Singh, Shulman, Pitt, Higgitt, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered July 2, 2020, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to reargue, and, upon reargument, adhered to its prior decision denying plaintiff's motion for summary judgment and order of reference, unanimously affirmed, without costs.
"A plaintiff in a foreclosure action establishes standing by showing that it had either a written assignment or physical possession of the underlying note and mortgage prior to commencement" ( Deutsche Bank Natl. Trust Co. v. Guevara, 170 A.D.3d 603, 603, 97 N.Y.S.3d 84 [1st Dept. 2019] ). Where a plaintiff cannot establish a written assignment prior to commencement, it must "adequately prove that it did, indeed, have possession of the note prior to commencement of this action ... A conclusory statement in an affidavit will not suffice" when standing is raised as a defense ( id. at 603–604, 97 N.Y.S.3d 84 [internal quotation marks and brackets omitted]). Here, the affiant's bare claim that plaintiff "has been in continuous possession of the Note and Mortgage prior to referring the Loan to be foreclosed" is not sufficient to establish plaintiff's standing (see Nationstar Mtge. LLC v. Torres, 192 A.D.3d 458, 459, 139 N.Y.S.3d 825 [1st Dept. 2021] ).
We have considered plaintiff's remaining arguments and find them unavailing.