| Deutsche Bank Natl. Trust Co. v Rivas |
| 2012 NY Slip Op 03800 [95 AD3d 1061] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company, Appellant, v LuisRivas, Respondent, et al., Defendants. |
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In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Rockland County (Alfieri, J.), dated March 2, 2011, which granted that branch of themotion of the defendant Luis Rivas which was to dismiss the complaint insofar as assertedagainst him for lack of standing pursuant to CPLR 3211 (a) (3).
Ordered that the order is reversed, on the law, with costs, and that branch of the motion ofthe defendant Luis Rivas which was to dismiss the complaint insofar as asserted against him forlack of standing pursuant to CPLR 3211 (a) (3) is denied.
In this action to foreclose a mortgage, the defendant Luis Rivas moved to dismiss thecomplaint insofar as asserted against him on the ground, among others, that the plaintiff lackedstanding to commence the action (see CPLR 3211 [a] [3]). The Supreme Court grantedthat branch of the motion. The plaintiff appeals, and we reverse.
When a plaintiff's standing to commence a foreclosure action is placed in issue by thedefendant, it is incumbent upon the plaintiff to establish its standing to be entitled to relief (see Citimortgage, Inc. v Stosel, 89AD3d 887, 888 [2011]; US BankN.A. v Madero, 80 AD3d 751, 752 [2011]; US Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]). Aplaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is boththe holder or assignee of the subject mortgage and the holder or assignee of the underlying note,"either by physical delivery or execution of a written assignment prior to the commencement ofthe action" (Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95, 108 [2011]). Here, the issue of standing cannot be determinedas a matter of law on this record (seeHSBC Mtge. Corp. [USA] v MacPherson, 89 AD3d 1061, 1062 [2011]), because thereis a question of fact as to whether the plaintiff was the lawful holder of the note when itcommenced the action (see MortgageElec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2007]; cf. Bank of N.Y. v Silverberg, 86AD3d 274, 281-282 [2011]; TPZCorp. v Dabbs, 25 AD3d 787, 789 [2006]).
The remaining branches of Rivas's motion remain pending and undecided (see Katz vKatz, 68 AD2d 536, 542-543 [1979]). Dillon, J.P., Balkin, Eng and Chambers, JJ., concur.