| GRP Loan, LLC v Taylor |
| 2012 NY Slip Op 03981 [95 AD3d 1172] |
| May 23, 2012 |
| Appellate Division, Second Department |
| GRP Loan, LLC, et al., Respondents, v Joy Taylor et al.,Appellants, et al., Defendant. |
—[*1] Sheldon May & Associates, P.C., Farmingville, N.Y. (Stim & Warmuth, P.C. [Glenn P.Warmuth], of counsel), for respondent DLJ Mortgage Capital, Inc.
In an action to foreclose a mortgage, the defendants Joy Taylor and Lennox Taylor appeal (1)from an order of the Supreme Court, Nassau County (Adams, J.), entered October 21, 2010,which granted the motion of the plaintiff GRP Loan, LLC, inter alia, for summary judgment andfor leave to amend the caption to add DLJ Mortgage Capital, Inc., as a plaintiff, and (2), aslimited by their brief, from so much of an order of the same court entered January 20, 2011, as,upon reargument, adhered to the original determination.
Ordered that the appeal from the order entered October 21, 2010, is dismissed, as that orderwas superseded by the order entered January 20, 2011, made upon reargument; and it is further,
Ordered that the order entered January 20, 2011, is affirmed insofar as appealed from, withcosts to the respondent DLJ Mortgage Capital, Inc.
In 2007 the defendant Joy Taylor executed an adjustable rate note to borrow the sum of$420,750 from Alliance Mortgage Banking Corp. (hereinafter Alliance). The note was secured bya mortgage on Taylor's property located in Elmont. Alliance then assigned the note and mortgageto Option One Mortgage Corporation (hereinafter Option One). On March 2, 2007, Option Oneassigned the note and mortgage to the plaintiff GRP Loan, LLC (hereinafter GRP).
On May 11, 2009, GRP commenced this foreclosure action against, among others, JoyTaylor, by the filing of a summons and complaint, alleging that Taylor had defaulted on herpayment obligation as of April 1, 2008. Subsequent to the commencement of this action, GRPassigned the note and mortgage to the plaintiff DLJ Mortgage Capital, Inc. (hereinafter DLJ). TheSupreme Court granted the motion of GRP, inter alia, for summary judgment and for leave toamend the caption to add DLJ as a plaintiff and to add Joy Taylor's husband, Lennox Taylor, as adefendant (hereinafter together the appellants). Joy Taylor then moved for leave to reargue heropposition to [*2]GRP's motion, and, upon reargument, theSupreme Court adhered to the original determination.
"In order to commence a foreclosure action, the plaintiff must have a legal or equitableinterest in the subject mortgage" (Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709 [2009];see CitiMortgage, Inc. v Rosenthal,88 AD3d 759, 761 [2011]). A plaintiff has standing where it is both the holder or assignee ofthe subject mortgage and the holder or assignee of the underlying note prior to commencement ofthe action with the filing of the complaint (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 108[2011]; Wells Fargo Bank, N.A. vMarchione, 69 AD3d 204, 207-208 [2009]). Where the issue of standing is raised by adefendant, a plaintiff must prove its standing in order to be entitled to relief (see Bank of N.Y. v Silverberg, 86AD3d 274, 279 [2011]). "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, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68AD3d 752, 754 [2009]).
Here, GRP met its prima facie burden by producing "the mortgage and unpaid note, alongwith evidence of default" (CapstoneBus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882, 883 [2010]; see Deutsche Bank Natl. Trust Co. vPosner, 89 AD3d 674, 674-675 [2011]; Aurora Loan Servs., LLC v Thomas, 53 AD3d 561 [2008]). GRPalso submitted documentation, in the form of written assignments, which established that it wasthe owner and holder of the subject mortgage and note prior to the commencement of this action.These assignments were duly recorded in the Nassau County Clerk's Office.
Furthermore, GRP submitted documentation establishing the assignment of the mortgage andnote to DLJ subsequent to the commencement of the action. Pursuant to CPLR 1018, "the actionmay be continued by or against the original parties unless the court directs the person to whomthe interest is transferred to be substituted or joined in the action." Moreover, "[t]hedetermination to substitute or join a party pursuant to CPLR 1018 is within the discretion of thetrial court" (NationsCredit Home EquityServs. v Anderson, 16 AD3d 563, 564 [2005]; see CitiMortgage, Inc. vRosenthal, 88 AD3d at 761).
The appellants' remaining contentions, including their contention that various loandocuments and assignments of the note and mortgage were fraudulently altered, are withoutmerit.
Accordingly, upon reargument, the Supreme Court properly adhered to its originaldetermination granting GRP's motion, inter alia, for summary judgment and for leave to amendthe caption to add DLJ as a plaintiff. Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.