| JP Morgan Chase Bank, N.A. v Venture |
| 2017 NY Slip Op 01613 [148 AD3d 1269] |
| March 2, 2017 |
| Appellate Division, Third Department |
[*1]
| JP Morgan Chase Bank, National Association,Respondent, v Daniel Venture, Appellant, et al., Defendants. |
Daniel Venture, New York City, appellant pro se.
Parker, Ibrahim & Berg, LLC, New York City (Scott W. Parker of counsel), forrespondent.
Peters, P.J. Appeal from an order of the Supreme Court (Becker, J.), entered August 3, 2015in Delaware County, which, among other things, granted plaintiff's motion for summaryjudgment.
On July 8, 2004, defendant Daniel Venture (hereinafter defendant) executed a promissorynote in the original principal amount of $160,000 in favor of Mortgageit, Inc. The note wassecured by a mortgage on real property located in the hamlet of Roscoe, Delaware County,executed by defendant in favor of Mortgage Electronic Registration Systems, Inc. (hereinafterMERS), as nominee for Mortgageit. The mortgage was recorded in the Delaware County Clerk'soffice on July 15, 2004. MERS thereafter assigned the mortgage to plaintiff, which assignmentwas recorded on November 23, 2012 in the same Clerk's office.
Defendant failed to make the payment due on April 1, 2009 and thereafter failed to makepayments to bring the loan current. On June 5, 2013, plaintiff commenced this mortgageforeclosure action. Defendant answered, asserting, among other things, the affirmative defensesof lack of standing and improper service of process, and interposed a counterclaim. Insofar as isrelevant here, plaintiff subsequently moved for summary judgment and defendant cross-movedfor dismissal of the complaint or, in the alternative, sought denial of plaintiff's summaryjudgment motion. Supreme Court granted plaintiff's motion, and defendantappeals.
[*2] Plaintiff established its prima facieentitlement to summary judgment by submitting the mortgage and unpaid note, along withevidence of defendant's default (seeNationstar Mtge., LLC v Alling, 141 AD3d 916, 917-918 [2016]; Bank of N.Y. Mellon v McClintock,138 AD3d 1372, 1373 [2016]; Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737, 738[2015]). However, because defendant raised the issue of standing in his answer, plaintiff was alsorequired to prove its standing to be entitled to the relief sought in the complaint (see Citibank, NA v Abrams, 144 AD3d1212, 1214 [2016]; Wells FargoBank, N.A. v Walker, 141 AD3d 986, 987 [2016]). "A plaintiff's standing is establishedin a mortgage foreclosure action 'where it is both the holder or assignee of the subject mortgageand the holder or assignee of the underlying note at the time the action is commenced' "(Everhome Mtge. Co. v Pettit, 135AD3d 1054, 1055 [2016], quoting Chase Home Fin., LLC v Miciotta, 101 AD3d 1307, 1307 [2012];see Wells Fargo Bank, NA vOstiguy, 127 AD3d 1375, 1376 [2015]). " 'Either a written assignment of theunderlying note or the physical delivery of the note prior to the commencement of the foreclosureaction is sufficient to transfer the obligation, and the mortgage passes with the debt as aninseparable incident' " (U.S.Bank N.A. v Carnivale, 138 AD3d 1220, 1221 [2016], quoting Onewest Bank, F.S.B. v Mazzone, 130AD3d 1399, 1400 [2015]).
Initially, we agree with defendant that plaintiff has not established standing as the assignee ofthe mortgage from MERS. Although the written assignment purports to assign both the mortgageand the note, it is settled that, "as 'nominee,' MERS's authority [is] limited to only those powerswhich were specifically conferred to it and authorized by the lender" (Bank of N.Y. v Silverberg, 86 AD3d274, 281 [2011]), and plaintiff has failed to submit any proof establishing the authority ofMERS to assign the note to it (see Filanv Dellaria, 144 AD3d 967, 970-971 [2016]; Citibank, N.A. v Herman, 125 AD3d 587, 588-589 [2015];Bank of N.Y. v Silverberg, 86 AD3d at 281; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 109 [2011];see also Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d at 738; Bank of Am., N.A. v Kyle, 129 AD3d1168, 1170 [2015]).
Plaintiff has, however, established its standing by demonstrating physical possession of thenote at the time of the commencement of the action. Although the averments in the affidavit ofmerit were insufficient to establish delivery and possession of the note and the indorsement onthe note annexed to that affidavit was undated, plaintiff alleged in the complaint that it was thecurrent holder of the note and attached a copy of the note thereto. This was sufficient to establishprima facie that plaintiff had standing (see Deutsche Bank Natl. Trust Co. v Umeh, 145 AD3d 497, 497[2016]; JPMorgan Chase Bank, N.A. vRoseman, 137 AD3d 1222, 1223 [2016]; Nationstar Mtge., LLC v Catizone, 127 AD3d 1151, 1152 [2015];cf. Bank of Am., N.A. v Kyle, 129 AD3d at 1169-1170). As defendant failed to raise atriable issue of fact in opposition, Supreme Court properly granted plaintiff's summary judgmentmotion (see Tirone v Buczek, 142AD3d 1310, 1311 [2016], appeal and lv dismissed 28 NY3d 1180 [Feb. 14, 2017]; HSBCBank USA, N.A. v Baptiste, 128 AD3d 773, 774 [2015]).
Supreme Court also properly denied defendant's cross motion insofar as it sought dismissalof the complaint. Defendant waived his affirmative defense of lack of personal jurisdiction on thebasis of improper service of process, as he failed to move to dismiss the complaint on that groundwithin 60 days after serving his answer (see CPLR 3211 [e]; Generation Mtge. Co. v Medina, 138AD3d 688, 689 [2016]; HSBCBank USA N.A. v Thomas, 92 AD3d 531, 531 [2012]). This defense was likewisewaived by defendant's assertion of a counterclaim unrelated to this action (see Textile Tech.Exch. v Davis, 81 NY2d 56, 58-59 [1993]; GE Capital Mtge. Servs. v Mittelman,238 AD2d 471, 471 [1997]). In light of the foregoing, defendant also cannot challenge SupremeCourt's grant of plaintiff's motion for an extension of time to serve defendant with processbeyond the 120-day period provided for in [*3]CPLR 306-b, nuncpro tunc (cf. Page v Marusich, 30AD3d 871, 872-873 [2006]).[FN1]
Finally, plaintiff was not required to comply with RPAPL 1304, which entitles the borrowerto a pre-foreclosure form notice of default, because the loan in question was not a "home loan,"given that the second home rider attached to the mortgage and defendant's own submissionsestablished that the mortgaged property was not his primary residence (see RPAPL 1304[6] [iii]; CPLR 3408 [a]; Citimortgage,Inc. v Simon, 137 AD3d 1190, 1192 [2016]; Richlew Real Estate Venture v Grant, 131 AD3d 1223, 1224[2015]; Wells Fargo Bank, NA vOstiguy, 119 AD3d 1266, 1267 [2014]; Fairmont Capital, LLC v Laniado, 116 AD3d 998, 999[2014]).[FN2]
Egan Jr., Rose, Devine and Aarons, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1:We note that such challengewould nonetheless lack merit in view of, among other things, plaintiff's diligent attempts tolocate and serve defendant and defendant's failure to show any prejudice by the delay in service(see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Emigrant Bank v Estate of Robinson,144 AD3d 1084, 1085-1086 [2016]).
Footnote 2:In any event, plaintiff establishedcompliance with RPAPL 1304 by submitting a default notice that was sent to both the subjectpremises and defendant's primary residence and an affidavit by an employee who affirmed, basedon his review of the business records pertaining to the loan, that the 90-day pre-foreclosure noticewas sent to defendant by regular first class and certified mail, return receipt requested, to bothaddresses (see Wells Fargo Bank, N.A. v Walker, 141 AD3d at 989; Flagstar Bank, FSB v Mendoza, 139AD3d 898, 900 [2016]).