| HSBC Bank USA v Hernandez |
| 2012 NY Slip Op 01434 [92 AD3d 843] |
| February 21, 2012 |
| Appellate Division, Second Department |
| HSBC Bank USA, Appellant, v Ana Hernandez et al.,Respondents |
—[*1] Harold M. Somer, P.C., Westbury, N.Y., for respondents.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Nassau County (Adams, J.), entered October 8, 2010, which denied its motion forsummary judgment on the complaint and, upon, in effect, searching the record, awardedsummary judgment to the defendants dismissing the complaint without prejudice.
Ordered that the order is modified, on the law, by deleting the provision thereof, in effect,searching the record and awarding summary judgment to the defendants dismissing the complaintwithout prejudice; as so modified, the order is affirmed, without costs or disbursements.
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, 279 [2011]; AuroraLoan Servs., LLC v Weisblum, 85 AD3d 95, 108 [2011]; Wells Fargo Bank, N.A. v Marchione,69 AD3d 204, 207 [2009]; USBank, N.A. v Collymore, 68 AD3d 752, 753 [2009]). An assignment of a mortgagewithout assignment of the underlying note or bond is a nullity, and no interest is acquired by it(see Deutsche Bank Natl. Trust Co. vBarnett, 88 AD3d 636, 637 [2011]; Bank of N.Y. v Silverberg, 86 AD3d at280). "Either a written assignment of the underlying note or the physical delivery of the noteprior to the commencement of the foreclosure action is sufficient to transfer the obligation"(U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC vWeisblum, 85 AD3d at 108).
Here, the plaintiff failed to establish, prima facie, that it had standing to commence theaction. The plaintiff's evidence did not demonstrate that the note was physically delivered to itprior to the commencement of the action. The affidavit from the plaintiff's servicing agent did notgive any factual details of a physical delivery of the note and, thus, failed to establish that theplaintiff had physical possession of the note prior to commencing this action (see Citimortgage, Inc. v Stosel, 89AD3d 887, 888 [2011]; Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d at 637;Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 108; US Bank, N.A. vCollymore, 68 AD3d at 754). Accordingly, the Supreme Court properly denied the plaintiff'smotion for summary judgment on [*2]the complaint.
However, the Supreme Court should not have, in effect, searched the record and awardedsummary judgment to the defendants dismissing the complaint without prejudice, as the parties'submissions failed to establish, as a matter of law, that the plaintiff lacked standing to commencethe action. Dillon, J.P., Florio, Chambers and Lott, JJ., concur.