Opinion
2013-00866
11-12-2014
WELLS FARGO BANK, N.A., appellant, v. Chaudry R. ALI, respondent, et al., defendants.
Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Geraldine A. Cheverko of counsel), for appellant. Solomon Rosengarten, Brooklyn, N.Y., for respondent.
Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Geraldine A. Cheverko of counsel), for appellant.
Solomon Rosengarten, Brooklyn, N.Y., for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.
Opinion In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Baily–Schiffman, J.), dated September 9, 2011, which denied its motion for summary judgment on the complaint and granted the cross motion of the defendant Chaudry R. Ali pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment on the complaint is granted, and the cross motion of the defendant Chaudry R. Ali pursuant to CPLR 3211(a) to dismiss the complaint is denied.
A plaintiff seeking to establish prima facie entitlement to judgment as a matter of law in a residential mortgage foreclosure action must produce the mortgage, the unpaid note, and evidence of the default (see W & H Equities LLC v. Odums, 113 A.D.3d 840, 978 N.Y.S.2d 910 ; Washington Mut. Bank v. Schenk, 112 A.D.3d 615, 616, 975 N.Y.S.2d 902 ; Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d 856, 877 N.Y.S.2d 200 ). If the plaintiff is not the original lender and standing is at issue, the plaintiff must also provide evidence that it received both the mortgage and note by a proper assignment (see Midfirst Bank v. Agho, 121 A.D.3d 343, 991 N.Y.S.2d 623 ; Citimortgage, Inc. v. Stosel, 89 A.D.3d 887, 888, 934 N.Y.S.2d 182 ; CitiMortgage, Inc. v. Rosenthal, 88 A.D.3d 759, 761, 931 N.Y.S.2d 638 ; Deutsche Bank Natl. Trust Co. v. Barnett, 88 A.D.3d 636, 637, 931 N.Y.S.2d 630 ), which can be established by the production of a written assignment of the note (see Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 980 N.Y.S.2d 475 ; Homecomings Fin., LLC v. Guldi, 108 A.D.3d 506, 969 N.Y.S.2d 470 ; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 969 N.Y.S.2d 82 ; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609 ), or by physical delivery to the plaintiff of the mortgage and note (see Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 981 N.Y.S.2d 547 ; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d at 108, 923 N.Y.S.2d 609 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 890 N.Y.S.2d 578 ).
Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the default of the defendant Chaudry R. Ali, together with evidence that it received the note and mortgage by proper assignment (see Midfirst Bank v. Agho, 121 A.D.3d 343, 991 N.Y.S.2d 623 ). Contrary to the Supreme Court's finding, the documentary evidence established that there was no gap in the chain of ownership of one of the notes and mortgages, which was the subject of a consolidation, extension, and modification agreement. In opposition, Ali failed to raise a triable issue of fact.
Ali failed to establish that the plaintiff lacked standing to commence the action.
Ali's remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint and denied Ali's cross motion pursuant to CPLR 3211(a) to dismiss the complaint.