| Deutsche Bank Natl. Trust Co. v Barnett |
| 2011 NY Slip Op 06995 [88 AD3d 636] |
| October 4, 2011 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company, as Trustee for FirstFranklin Mortgage Loan Trust 2005-FF11, Mortgage Pass Through Certificates Series2005-FF11, Respondent, v Joell C. Barnett, Appellant, et al.,Defendants. |
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In an action to foreclose a mortgage, the defendant Joell C. Barnett appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), datedFebruary 23, 2010, as granted those branches of the plaintiff's motion which were to strike theanswer, for summary judgment on the complaint, and for an order of reference, and denied hercross motion pursuant to CPLR 3211 (a) (3) to dismiss the complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the plaintiff's motion which were to strike the answer, for summary judgmenton the complaint, and for an order of reference, and substituting therefor provisions denyingthose branches the motion; as so modified, the order is affirmed insofar as appealed from, withcosts to the appellant.
In order to commence a foreclosure action, a plaintiff must have a legal or equitable interestin the mortgage. A plaintiff has standing where it is the holder or assignee of both the subjectmortgage and of the underlying note at the time the action is commenced (see Bank of N.Y. v Silverberg, 86AD3d 274 [2011]; Aurora LoanServs., LLC v Weisblum, 85 AD3d 95 [2011]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207 [2009];U.S. Bank, N.A. v Collymore, 68AD3d 752 [2009]; CountrywideHome Loans, Inc. v Gress, 68 AD3d 709 [2009]). An assignment of a mortgage withoutassignment of the underlying note or bond is a nullity, and no interest is acquired by it (seeMerritt v Bartholick, 36 NY 44, 45 [1867]; Bank of N.Y. v Silverberg, 86 AD3d 274 [2011]; LaSalle Bank Natl. Assn. v Ahearn, 59AD3d 911, 912 [2009]). "Either a written assignment of the underlying note or the physicaldelivery of the note prior to the commencement of the foreclosure action is sufficient to transferthe obligation" (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora LoanServs., LLC v Weisblum, 85 AD3d at 108). [*2]Here, theplaintiff failed to establish, as a matter of law, that it had standing to commence the action. TheSupreme Court thus erred in awarding the plaintiff summary judgment.
Contrary to the contention of the defendant Joell C. Barnett, an affidavit made by the plaintiffwas not required, since the plaintiff was not proceeding upon Barnett's default (cf. CPLR3215 [f]). However, the documentation submitted failed to establish that, prior to commencementof the action, the plaintiff was the holder or assignee of both the note and mortgage. The plaintiffsubmitted copies of two different versions of an undated allonge which was purportedly affixedto the original note pursuant to UCC 3-202 (2) (see Slutsky v Blooming Grove Inn, 147AD2d 208, 212 [1989]). Moreover, these allonges purporting to endorse the note from FirstFranklin, a Division of National City Bank of Indiana (hereinafter Franklin of Indiana) to theplaintiff conflict with the copy of the note submitted, which contains undated endorsements fromFranklin of Indiana to First Franklin Financial Corporation (hereinafter Franklin Financial), thenfrom Franklin Financial in blank.
The plaintiff also failed to establish that the note was physically delivered to it prior to thecommencement of this action. The vice-president of the plaintiff's servicing agent and theplaintiff's counsel both affirmed that the original note is in the possession of the plaintiff'scounsel. However, the affidavits did not state any factual details concerning when the plaintiffreceived physical possession of the note and, thus, failed to establish that the plaintiff hadphysical possession of the note prior to commencing this action (see Aurora Loan Servs.,LLC v Weisblum, 85 AD3d at 108; U.S. Bank, N.A. v Collymore, 68 AD3d at 754).Finally, the certificates of resolution and incumbency submitted to establish the authority of oneEileen Gonzales to execute a September 14, 2007, assignment of mortgage from FranklinFinancial to the plaintiff were executed after the subject assignment and, thus, cannot establishthat she had such authority at the time the mortgage assignment was made. These inconsistenciesraise an issue of fact as to the plaintiff's standing to commence this action. Thus, the SupremeCourt should have denied those branches of the plaintiff's motion which were to strike theanswer, for summary judgment on the complaint, and for an order of reference; the cross motionwas properly denied (see US Bank N.A.v Madero, 80 AD3d 751, 753 [2011]). Rivera, J.P., Florio, Leventhal and Roman, JJ.,concur.