| Everhome Mtge. Co. v Pettit |
| 2016 NY Slip Op 00088 [135 AD3d 1054] |
| January 7, 2016 |
| Appellate Division, Third Department |
[*1]
| Everhome Mortgage Company,Respondent, v William E. Pettit et al., Appellants, et al.,Defendants. |
Ronald J. Kim, Saratoga Springs, for appellants.
Rosicki, Rosicki & Associates, PC, Plainview (Thomas C. Frost of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Nolan Jr., J.), entered July17, 2014 in Saratoga County, which, among other things, granted plaintiff's motion forsummary judgment against defendants William E. Pettit and Susan A. Pettit.
In July 2006, defendants William E. Pettit and Susan A. Pettit (hereinaftercollectively referred to as defendants) executed a note in favor of Opteum FinancialServices, LLC that was secured by a mortgage on certain real property. In 2009,defendants ceased to make payments on the loan and subsequently defaulted. Plaintiffcommenced the instant action for foreclosure in July 2010. In January 2014, plaintiffmoved to, among other things, substitute EverBank—its successor—asplaintiff and for summary judgment against defendants. Defendants, among other things,cross-moved for summary judgment dismissing the complaint against them for lack ofstanding. Supreme Court granted plaintiff's motion and denied defendants' crossmotion.[FN1]Defendants [*2]appeal, and we affirm.
Defendants' contention that plaintiff failed to prove as a matter of law that it hadstanding to foreclose is without merit. A plaintiff's standing is established in a mortgageforeclosure action "where it is both the holder or assignee of the subject mortgage andthe holder or assignee of the underlying note at the time the action is commenced" (Chase Home Fin., LLC vMiciotta, 101 AD3d 1307, 1307-1308 [2012] [internal quotation marks andcitation omitted]; see DeutscheBank Natl. Trust Co. v Monica, 131 AD3d 737, 738 [2015]). However, "[o]ncea note is transferred, . . . the mortgage passes as an incident to the note" and,thus, "it is not necessary [for a plaintiff] to have possession of the mortgage at the timethe action is commenced" (Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362[2015] [internal quotation marks and citation omitted]). Therefore, "the note, and not themortgage, is the dispositive instrument that conveys standing to foreclose" (id. at361; see Deutsche Bank TrustCo. Ams. v Vitellas, 131 AD3d 52, 59 [2015]).
Plaintiff submitted, among other things, a copy of the original note and an affidavitfrom EverBank's vice-president, E. Michele de Craen. De Craen averred that, based onher personal knowledge of how loan records were kept and her review of the loanrecords for defendants, which were maintained by EverBank in its regularly conductedbusiness activities, defendants executed and delivered the original note to OpteumFinancial Services, LLC on July 18, 2006. De Craen further averred that the note wasthereafter transferred to plaintiff on June 1, 2007 (compare Loancare v Firshing, 130 AD3d 787, 789 [2015];Wells Fargo Bank, N.A. vArias, 121 AD3d 973, 974 [2014]). According to de Craen, plaintiff continuedto maintain the note and held it at the time that it commenced the instantaction.[FN2] Giventhis competent evidence establishing transfer of the note and plaintiff's possession of it atthe time of commencement, and further considering that defendants' submissions do notraise any material issues of fact, plaintiff established its standing as a matter of law(see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 359-362; TD Bank, N.A. v Mandia, 133AD3d 590, 591 [2015]; Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980, 982[2015]; HSBC Bank USA, N.A.v Spitzer, 131 AD3d 1206, 1207 [2015]; Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001,1002 [2015]; Loancare v Firshing, 130 AD3d at 789; Wells Fargo Bank, N.A.v Arias, 121 AD3d at 974). Defendants' remaining arguments are also withoutmerit.
Lahtinen, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote 1:Although SupremeCourt's order granted plaintiff's request to substitute EverBank in place of plaintiff, thecourt did not amend the caption. Regardless, a successor corporation "is vested with allof the rights and powers of the merged corporations, and is considered to have beennamed in any document taking effect before the merger" (Barclay's Bank of N.Y. vSmitty's Ranch, 122 AD2d 323, 324 [1986]; see Banking Law§ 602; see e.g. TDBank, N.A. v Mandia, 133 AD3d 590 [2015]).
Footnote 2:Given that, in this case,de Craen's affidavit accounted for the chain of ownership leading to plaintiff'spossession, and further considering the fact that defendants—who had beenprovided a copy of the note during discovery and more than a year and a half prior toplaintiff's motion for summary judgment—did not move to compel the productionof the original note for inspection, the facts in this case do not raise the same issues thatcaused disagreement between certain members of this Court in JP Morgan Chase Bank, N.A. vHill (133 AD3d 1057, 1057-1062 [2015]).