Summary
holding that plaintiff bank's summary judgment motion should have been denied where the note included undated indorsements because it was unclear whether they were effectuated prior to the commencement of the action
Summary of this case from Cit Bank, N.A. v. Ji Youn MinOpinion
02-11-2015
WELLS FARGO BANK, NA, respondent, v. Brian BURKE, et al., appellants, et al., defendants.
Richard J. Sullivan, Port Jefferson, N.Y., for appellants. Hogan Lovells U.S., LLP, New York, N.Y. (Chava Brandriss of counsel), for respondent.
Richard J. Sullivan, Port Jefferson, N.Y., for appellants.
Hogan Lovells U.S., LLP, New York, N.Y. (Chava Brandriss of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Opinion In an action to foreclose a mortgage, the defendants Brian Burke and Lisa Burke appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), entered September 16, 2013, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike their answer, and to appoint a referee to compute the sums due and owing under the subject note and mortgage.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike the answer of the defendants Brian Burke and Lisa Burke, and to appoint a referee to compute the sums due and owing under the subject note and mortgage are denied.
In a mortgage foreclosure action, where the plaintiff's standing to commence the action is placed in issue by the defendant, “the plaintiff must prove its standing in order to be entitled to relief” (U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578 ). “[A] plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” (Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532 ). “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 Bank of N.Y. v. Silverberg, 86 A.D.3d at 281, 926 N.Y.S.2d 532 ).
Here, the evidence submitted by the plaintiff in support of its motion, inter alia, for summary judgment on the complaint, to strike the answer of the defendants Brian Burke and Lisa Burke (hereinafter together the Burke defendants), and to appoint a referee to compute the sums due and owing under the subject note and mortgage, did not establish that the subject note was physically delivered to it prior to the commencement of the action (see U. S. Bank N.A. v. Faruque, 120 A.D.3d 575, 577, 991 N.Y.S.2d 630 ; Bank of N.Y. Mellon v. Gales, 116 A.D.3d 723, 982 N.Y.S.2d 911 ). The affidavits of the plaintiff's Vice President of Loan Documentation did not give any factual details of a physical delivery and, thus, failed to establish that the plaintiff had physical possession of the note at the time the action was commenced (see U.S. 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, 114 A.D.3d 627, 628–629, 980 N.Y.S.2d 475 ). Further, although the plaintiff's Vice President of Loan Documentation stated in her affidavits 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 U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578 ).
While the copy of the note submitted by the plaintiff in support of its motion includes an indorsement to the plaintiff by the original lender and a second indorsement to the plaintiff, both indorsements are undated and, thus, it is not clear whether the indorsements were effectuated prior to the commencement of this action (see Deutsche Bank Natl. Trust Co. v. Haller, 100 A.D.3d at 682–683, 954 N.Y.S.2d 551 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578 ). Regarding the purported assignment of the note and mortgage, the assignment of the mortgage from the Mortgage Electronic Registration Systems, Inc., to the plaintiff dated March 4, 2011, transferred only the mortgage and, thus, the plaintiff failed to demonstrate that the note had also been assigned at that time (see U.S. Bank N.A. v. Faruque, 120 A.D.3d at 577, 991 N.Y.S.2d 630 ; Bank of N.Y. v. Silverberg, 86 A.D.3d at 283, 926 N.Y.S.2d 532 ; cf. Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 A.D.3d 674, 838 N.Y.S.2d 622 ). Under these circumstances, the plaintiff failed to establish, prima facie, that it had standing to commence this action.
In any event, as the Burke defendants correctly contend, the plaintiff failed to submit an affidavit of service evincing that it properly served the Burke defendants pursuant to RPAPL 1304 (see Deutsche Bank Natl. Trust Co. v. Spanos, 102 A.D.3d 909, 911, 961 N.Y.S.2d 200 ; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 106, 923 N.Y.S.2d 609 ). Consequently, under the circumstances, the plaintiff failed to tender sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304 (see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d at 106, 923 N.Y.S.2d 609 ).
Accordingly, those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike the answer of the Burke defendants, and to appoint a referee to compute the sums due and owing under the subject note and mortgage, should have been denied, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).