| Wells Fargo Bank, N.A. v Hudson |
| 2012 NY Slip Op 05919 [98 AD3d 576] |
| August 8, 2012 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., Appellant, v Jascinth Hudson,Also Known as Jascinth A. Hudson, et al., Defendants, and Mahitima Baa, Respondent. |
—[*1] Mahitima Baa, Brooklyn, N.Y., respondent pro se.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Demarest, J.), dated December 2, 2010, which granted the oral applicationof the defendant Mahitima Baa to dismiss the complaint insofar as asserted against him and, ineffect, denied its motion for a judgment of foreclosure and sale.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asgranted the oral application of the defendant Mahitima Baa to dismiss the complaint insofar asasserted against him is deemed to be an application for leave to appeal from that part of the order,and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof granting theoral application of the defendant Mahitima Baa to dismiss the complaint insofar as assertedagainst him and substituting therefor a provision denying the oral application; as so modified, theorder is affirmed, without costs or disbursements.
On May 31, 2006, the defendant Jascinth Hudson executed a note to borrow the sum of$675,000 from the plaintiff Wells Fargo Bank, N.A. The note was secured by a mortgage onHudson's residential premises in Brooklyn. On October 10, 2006, the plaintiff commenced thisforeclosure action alleging that it was the holder of the mortgage and note, and that Hudson wasin [*2]default of her payment obligations. Hudson failed to appearor answer the complaint, and in June 2007 the Supreme Court granted the plaintiff's motion toappoint a referee to compute the sums due and owing under the mortgage and note. More thantwo years later, in November 2009, the plaintiff assigned the mortgage and note to the EMCMortgage Corporation (hereinafter EMC), and EMC thereafter assigned the note and mortgage toanother entity.
In August 2010, shortly after the referee's report was filed, the plaintiff moved for a judgmentof foreclosure and sale. At oral argument on the motion on October 21, 2010, the defendantMahitima Baa appeared and informed the Supreme Court that the subject note and mortgage hadbeen transferred out of the plaintiff's possession. At a subsequent appearance on December 2,2010, Baa made an oral application to dismiss the complaint insofar as asserted against himbased upon the plaintiff's alleged lack of standing. By order dated December 2, 2010, theSupreme Court granted Baa's oral application and, in effect, denied the plaintiff's motion for ajudgment of foreclosure and sale. The plaintiff appeals and we modify to deny Baa's oralapplication.
The plaintiff had standing to commence this foreclosure action on October 10, 2006,because, at that time, it was both the holder of the subject mortgage and the underlying note (see Wells Fargo Bank, N.A. v Wine, 90AD3d 1216, 1217 [2011]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761 [2011]; Bank of N.Y. v Silverberg, 86 AD3d274, 279 [2011]). Further, the plaintiff did not lose the right to continue this action bysubsequently assigning the mortgage and note (see CPLR 1018; Wells Fargo Bank,N.A. v Wine, 90 AD3d at 1217). Pursuant to CPLR 1018, an action "may be continued by oragainst the original parties unless the court directs the person to whom the interest is transferredto be substituted or joined in the action." Here no party requested, and the Supreme Court did notdirect, that the current holder of the mortgage and note be substituted as the plaintiff.Accordingly, the Supreme Court erred in granting Baa's oral application to dismiss the complaintinsofar as asserted against him (see CitiMortgage, Inc. v Rosenthal, 88 AD3d at 761; Buywise Holding, LLC v Harris, 31AD3d 681, 683 [2006]).
Contrary to the plaintiff's contention, however, the Supreme Court properly denied its motionfor a judgment of foreclosure and sale. At oral argument on the motion on October 21, 2010, theSupreme Court directed the plaintiff to provide an attorney affirmation in compliance withAdministrative Order 548/10, which had just been issued by the Chief Administrative Judge ofthe State of New York and gone into effect the previous day. Administrative Order 548/10(hereinafter the Administrative Order), which has since been replaced by Administrative Order431/11, requires a plaintiff's counsel in a residential mortgage foreclosure action to file with thecourt an affirmation confirming the accuracy of the plaintiff's pleadings (see US Bank, N.A. v Boyce, 93 AD3d782 [2012]). In cases pending on the effective date of the Administrative Order, where nojudgment of foreclosure has been entered, the attorney affirmation must be filed at the time offiling of either the proposed order of reference or the proposed judgment of foreclosure(id.).
Here, the plaintiff filed its motion for a judgment of foreclosure and sale, accompanied by aproposed judgment, about two months before the Administrative Order went into effect onOctober 20, 2010. Although the last stage in the litigation for the filing of an attorney affirmationin a pending case had already passed, the Administrative Order nevertheless expressly applies toactions still pending on its effective date. Under these circumstances, the plaintiff was required tofile the mandatory attorney affirmation in compliance with both the Administrative Order and theSupreme Court's directive in order to obtain a judgment of foreclosure and sale (cf. Flagstar [*3]Bank v Bellafiore, 94 AD3d 1044 [2012]). The plaintiff'sfailure to do so warranted the denial of its motion for a judgment of foreclosure and sale. Skelos,J.P., Dickerson, Eng and Austin, JJ., concur.