| CWCapital Asset Mgt. LLC v Charney-FPG 114 41st St.,LLC |
| 2011 NY Slip Op 03907 [84 AD3d 506] |
| May 10, 2011 |
| Appellate Division, First Department |
| CWCapital Asset Management LLC, as Special Servicer for Bankof America, N.A., as Trustee on Behalf of the Registered Holders of GS Mortgage SecuritiesCorporation II, Commercial Mortgage Pass-Through Certificates, Series 2007-GG10,Respondent, v Charney-FPG 114 41st Street, LLC, Appellant, et al.,Defendants. |
—[*1] Venable LLP, New York (Brent W. Procida of counsel), for respondent.
Amended order, Supreme Court, New York County (Marcy S. Friedman, J.), entered March10, 2010, which granted plaintiff's motion for appointment of a temporary receiver in a mortgageforeclosure action, unanimously affirmed, with costs. Orders, same court and Justice, enteredJanuary 22, 2010, unanimously dismissed, without costs, as superseded by the March 10, 2010order.
Although a plaintiff in a foreclosure action must generally establish ownership of themortgage and mortgage note (seeWitelson v Jamaica Estates Holding Corp. I, 40 AD3d 284 [2007]), and the plaintiff inthis action does not hold the mortgage, it has standing to bring the foreclosure action and seekappointment of a receiver. The foreclosure complaint identified the trustee as the mortgageholder, the action was expressly maintained in plaintiff's capacity as servicing agent, and, in thepooling and servicing agreement, the trustee delegated to plaintiff authority to act with respect tothe subject mortgage (see Fairbanks Capital Corp. v Nagel, 289 AD2d 99 [2001]).
Contrary to defendant's contention, that the mortgage in Fairbanks Capital wasactually assigned to the servicing agent is not a "critical fact" distinguishing it from the instantcircumstance, inasmuch as the mortgage in that case was assigned to the servicing agent after theforeclosure action had been commenced, so the assignment could not have provided the basis forthe servicing agent's standing (see USBank N.A. v Madero, 80 AD3d 751, 752 [2011]). There is no requirement that theagent's authority to foreclose be granted in a document as to which defendant is a party, such asthe mortgage instrument or other loan documents (but see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d674 [2007]).
We have considered defendant's other contentions and find them unavailing.Concur—Sweeny, J.P., DeGrasse, Richter and Manzanet-Daniels, JJ.