| HSBC Bank USA, N.A. v Szoffer |
| 2017 NY Slip Op 03106 [149 AD3d 1400] |
| April 20, 2017 |
| Appellate Division, Third Department |
[*1]
| HSBC Bank USA, National Association, as Trustee forMortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-1, Mortgage Pass-ThroughCertificates, Respondent, v Mordechai Szoffer et al., Appellants, et al.,Defendants. |
Law Offices of Allen Kolber, Suffern (Allen A. Kolber of counsel), for appellants.
Reed Smith, LLP, New York City (Joseph B. Teig of counsel), for respondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Meddaugh, J.), entered October 2,2015 in Sullivan County, which, among other things, granted plaintiff's motion for summaryjudgment.
In April 2007, defendant Mordechai Szoffer, president of defendant Royal Property Care,Inc., executed a note and mortgage covering certain real property located in the hamlet of SouthFallsburg, Sullivan County. Although Szoffer was the obligor on the note and mortgage, RoyalProperty was the record owner of the property. Szoffer failed to make the required paymentsbeginning in April 2009 and, in July 2009, the subject mortgage was assigned to plaintiff.Plaintiff thereafter commenced this mortgage foreclosure action against, among others, Szofferand Royal Property (hereinafter collectively referred to as defendants). Following joinder ofissue, plaintiff moved for, among other things, summary judgment; defendants opposed themotion and cross-moved to dismiss the complaint—contending that plaintiff lackedstanding. Supreme Court, among other things, granted plaintiff's motion for summary judgment,prompting this appeal.
[*2] We affirm. "A plaintiffestablishes its entitlement to summary judgement in a mortgage foreclosure action by submittingthe mortgage and unpaid note, along with evidence of default in payments" (Citibank, NA v Abrams, 144 AD3d1212, 1214 [2016] [citations omitted]; see Nationstar Mtge., LLC v Alling, 141 AD3d 916, 917 [2016]; HSBC Bank USA, N.A. v Sage, 112AD3d 1126, 1127 [2013], lvs dismissed 22 NY3d 1172 [2014], 23 NY3d 1015[2014]). Here, in support of its motion for summary judgment, plaintiff tendered, among otherthings, the mortgage, the note (endorsed in blank), the assignment agreement, portions of theapplicable pooling and servicing agreement (together with a schedule identifying the subject loanas part of the pool of loans held in trust by plaintiff) and proof of defendants' default, includingthe relevant demand letters and notices. Plaintiff also submitted an affidavit from one of theofficers of its servicing agent, who, upon reviewing all of the pertinent business records, averredthat plaintiff was in default commencing with the April 1, 2009 mortgage payment and allsubsequent payments thereafter due. "Such proof was sufficient to demonstrate [plaintiff's] primafacie entitlement to judgment as a matter of law, thereby shifting the burden to defendant[s] toraise a question of fact as to a bona fide defense to foreclosure" (Nationstar Mtge., LLC vAlling, 141 AD3d at 918 [citations omitted]; see HSBC Bank USA, N.A. v Sage, 112AD3d at 1127).
In opposition, defendants submitted an attorney's affidavit, together with case law and proofof mortgage assignments that were unrelated to the property at issue, and argued that plaintifflacked standing. However, the record makes clear—and defendants readilyconcede—that they failed to raise lack of standing in their answer or in the context of atimely pre-answer motion to dismiss, thereby waiving this defense (see CPLR 3211 [a][3]; [e]; HSBC Mtge. Corp. [USA] vJohnston, 145 AD3d 1240, 1241 [2016]; Nationstar Mtge., LLC v Alling, 141AD3d at 917). To the extent that defendants argue that Supreme Court could—andshould—have raised this issue sua sponte and dismissed the underlying complaint, courtshave been consistent in holding that "a party's lack of standing does not constitute a jurisdictionaldefect and does not warrant a sua sponte dismissal of the complaint by the [trial] court" (Onewest Bank, FSB v Prince, 130AD3d 700, 701 [2015]; accordConsumer Solutions, LLC v Charles, 137 AD3d 952, 953 [2016]; Nationstar Mtge., LLC v Wong, 132AD3d 825, 825-826 [2015]; seeMarcon Affiliates, Inc. v Ventra, 112 AD3d 1095, 1095-1096 [2013]). Finally, whiledefendants assert that, consistent with the provisions of CPLR 3025 (b), they could have soughtleave to amend their answer to raise lack of standing as an affirmative defense, nothing in therecord suggests that they attempted to do so. Indeed, it does not appear that defendants made anyeffort to raise this issue until confronted with plaintiff's motion for summaryjudgment—some 5
McCarthy, J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1:In any event, plaintiff submittedtwo affidavits from officers of its servicing agent—one in support of its motion forsummary judgment and one in reply to defendants' papers in opposition—each of whomaverred that, based upon their respective reviews of the relevant business records, plaintiff was inpossession of the promissory note prior to the commencement of this foreclosure action, which issufficient to confer standing (seeJPMorgan Chase Bank, N.A. v Mantle, 134 AD3d 903, 904 [2015]; HSBC BankUSA, N.A. v Sage, 112 AD3d at 1127-1128; compare JP Morgan Chase Bank, N.A. v Venture, 148 AD3d 1269,1270-1271 [2017]).
Footnote 2:Defendants have not briefed themerits of the three affirmative defenses that they did raise in their answer and, as such, we deemany arguments in this regard to be abandoned (see generally NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc.,141 AD3d 785, 787 n 4 [2016]).